                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                 MIKAYLA FOSS, et al., Plaintiffs/Appellants,

                                         v.

           ARIZONA BOARD OF REGENTS, Defendant/Appellee.

                              No. 1 CA-CV 18-0781
                                FILED 11-7-2019


            Appeal from the Superior Court in Maricopa County
                           No. CV2018-006692
                 The Honorable Teresa A. Sanders, Judge

                                   AFFIRMED


                                    COUNSEL

The Entrekin Law Firm, Phoenix
By B. Lance Entrekin
Co-Counsel for Plaintiffs/Appellants

Tucker & Miller, LLLP, Phoenix
By Daniel P. J. Miller
Co-Counsel for Plaintiffs/Appellants

Osborn Maledon, PA, Phoenix
By Lynne C. Adams, Mary R. O’Grady, Emma Cone-Roddy
Counsel for Defendant/Appellee
                            FOSS, et al. v. ABOR
                            Decision of the Court



                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Chief Judge Peter B. Swann joined.


W E I N Z W E I G, Judge:

¶1             Arizona law directs that Arizona residents are entitled to
reduced in-state tuition rates at Arizona’s public universities. Meanwhile,
federal immigration law prohibits undocumented aliens from receiving in-
state tuition benefits unless the same benefits are provided to all United
States citizens and nationals. At issue here is whether three non-resident
students are entitled to recoup the cash difference between in-state and out-
of-state tuition for the 2017-2018 academic year because a discrete group of
undocumented aliens received in-state tuition rates to attend Arizona’s
public universities during that period. The superior court dismissed the
lawsuit for failure to state a claim because the non-resident students had no
contract or entitlement to receive the reduced tuition rates provided to
Arizona residents. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On appeal from a motion to dismiss, this court “assume[s] the
truth of [all] well-pled factual allegations and indulge[s] all reasonable
inferences therefrom.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7
(2008).

¶3            The Arizona Board of Regents (ABOR) is the governing body
for Arizona State University, the University of Arizona and Northern
Arizona University. ABOR fixes student tuition rates under Arizona law,
which directs that Arizona residents enjoy reduced in-state tuition rates at
Arizona’s public universities. A.R.S. §§ 15-1626(A)(5), -1802(A). To achieve
resident status, a student must meet the requirements set forth in A.R.S. §
15-1802(B), including that “the person is domiciled in this state for one
year.”

¶4             Plaintiffs Mikayla Foss, Eleanor Wiersma and Abigail
Garbarino were students at either Arizona State University or the
University of Arizona during the 2017-2018 academic year. They are United
States citizens, but not Arizona residents, and thus paid out-of-state tuition.



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                            FOSS, et al. v. ABOR
                            Decision of the Court

¶5           To understand their claims, we turn to the federal Illegal
Immigration Reform Act and Immigrant Responsibility Act and the
Deferred Action for Childhood Arrivals program.

                        Illegal Immigration Reform Act

¶6             In 1996, the federal government passed the Illegal
Immigration Reform and Immigrant Responsibility Act. Pub. L. No. 104-
208, 110 Stat. 3009 (1996). As relevant here, the Act provides that “an alien
who is not lawfully present in the United States shall not be eligible on the
basis of residence within a State . . . for any postsecondary education benefit
unless a citizen or national of the United States is eligible for such a benefit
. . . without regard to whether the citizen or national is such a resident.”
  8 U.S.C. § 1623 (“Section 1623”).

¶7             Section 1623’s prohibition was incorporated into Arizona law
at A.R.S. § 15-1803(B), which directs that “a person who was not a citizen or
legal resident of the United States or who is without lawful immigration
status is not entitled to classification as an in-state student pursuant to § 15-
1802.”

                     Deferred Action for Childhood Arrivals

¶8            In 2012, the U.S. Department of Homeland Security
recognized a Deferred Action for Childhood Arrivals (“DACA”) program,
exercising its prosecutorial discretion to defer deportation of certain
undocumented aliens who entered the country as children.

¶9            Beginning in 2013, Arizona courts were asked to consider
whether DACA recipients who otherwise met Arizona’s statutory
residency requirements could receive in-state tuition rates at Arizona’s
public universities. In 2015, a superior court held that DACA recipients
were “lawfully present” and thus eligible for in-state tuition. Based on that
decision, ABOR formally recognized that DACA students “were able to
establish in-state residency for tuition purposes at Arizona’s public
universities.” But in June 2017, the Arizona Court of Appeals reversed the
superior court. State ex rel. Brnovich v. Maricopa Cty. Cmty. Coll. Dist. Bd.,
242 Ariz. 325 (App. 2017). The Arizona Supreme Court then agreed to hear
the case. ABOR decided it would, in the interim, keep offering in-state
tuition to DACA members who qualified as Arizona residents.

¶10          In May 2018, the Arizona Supreme Court reached the same
conclusion as this court, holding that DACA students were not “lawfully
present” under Section 1623, and therefore could not receive in-state tuition


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                            FOSS, et al. v. ABOR
                            Decision of the Court

unless made available to all non-resident students with U.S. citizenship.
State ex rel. Brnovich v. Maricopa Cty. Cmty. Coll. Dist., 243 Ariz. 539, 542, ¶
16 (2018) (“MCCCD”). ABOR immediately complied and terminated in-
state tuition for DACA members.

                                 This Lawsuit

¶11             This lawsuit followed. Plaintiffs assert claims for declaratory
judgment, breach of contract and unjust enrichment; each claim turns on
the theory that ABOR overcharged the non-resident students for tuition
under Section 1623. Plaintiffs’ complaint alleges an “entitlement to
in[-]state tuition” for the 2017-2018 academic year when ABOR charged in-
state tuition to DACA members who satisfied Arizona’s residency
requirements.

¶12            ABOR moved to dismiss, arguing several grounds, including
that Plaintiffs’ claims all hinge on a federal statute (Section 1623) that
confers no rights or entitlement upon Plaintiffs to receive in-state tuition,
but instead prohibits undocumented aliens from receiving in-state tuition.
The court heard oral argument and asked Plaintiffs’ counsel if the issue was
“just whether or not [Section 1623] gives you a cause of action,” which
Plaintiffs’ counsel said was “primarily true.”

¶13           The superior court then dismissed Plaintiffs’ complaint for
failure to state a claim under Rule 12(b)(6), Arizona Rules of Civil
Procedure. The court interpreted Section 1623 as restricting the scope of
permissible tuition benefits for undocumented aliens. It held the statute
“does not provide an entitlement to [in-state tuition for all] U.S. citizens,
nor does it prohibit educational institutions from classifying non-resident
students as such, or from collecting non-resident tuition from them.”
Because Plaintiffs’ claims were “based solely upon a violation of [this
federal] statute,” the court held that Plaintiffs failed to state a claim.

¶14           Plaintiffs timely appealed and we have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶15           We review de novo the superior court’s ruling on a Rule
12(b)(6) motion to dismiss. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶
7 (2012). A Rule 12(b)(6) motion to dismiss should be granted if the
complaint fails to state a claim upon which relief can be granted. On appeal,
this court “must assume the truth of all of the complaint’s material
allegations [and] accord the plaintiffs the benefit of all inferences the


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                             FOSS, et al. v. ABOR
                             Decision of the Court

complaint can reasonably support,” Gatecliff v. Great Republic Life Ins. Co.,
154 Ariz. 502, 508 (App. 1987), but we do not accept as true “allegations
consisting of conclusions of law, inferences or deductions that are not
necessarily implied by well-pleaded facts, unreasonable inferences or
unsupported conclusions from such facts, or legal conclusions alleged as
facts,” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005).

                             Declaratory Judgment

¶16         Plaintiffs argue their complaint stated a Uniform Declaratory
Judgments Act (“UDJA”) claim upon which relief could be granted. A.R.S.
§ 12-1832. We disagree.

¶17            The UDJA generally provides that any person whose “rights,
status, or other legal relations are affected by statute” may seek a judicial
determination about the construction or validity of the statute. A.R.S. § 12–
1832. On a motion to dismiss, Plaintiffs must allege sufficient facts to
establish both (1) a protectible interest and (2) a justiciable controversy over
the denial of that interest. Ariz. Soc’y of Pathologists v. Ariz. Health Care Cost
Containment Sys. Admin., 201 Ariz. 553, 557, ¶ 19 (App. 2002). The
“complaint must assert a legal relationship, status or right in which the
party has a definite interest and an assertion of the denial of it by the other
party.” Land Dep’t v. O’Toole, 154 Ariz. 43, 47 (App. 1987). Arizona courts
have determined that a statute’s incidental beneficiaries have no
declaratory judgment claim to enforce its terms. Lancaster v. Ariz. Bd. of
Regents, 143 Ariz. 451, 457 (App. 1984) (dismissing declaratory judgment
and contract claims for failure to state a claim for relief).

¶18            Plaintiffs did not allege sufficient facts in their complaint to
establish a protectible interest and justiciable controversy. Although
Plaintiffs allege that non-resident students “are entitled to in[-]state tuition
rates for the 2017-18 school year under [Section 1623],” the statute’s actual
words neither create nor confer any entitlement upon them. “[T]he words
of a statute are to be given their ordinary meaning unless it appears from
the context or otherwise that a different meaning is intended.” MCCCD,
243 Ariz. at 541.

¶19          Section 1623 never mentions, much less creates and confers,
any enforceable private right for individual, non-resident students. The
Tenth Circuit captured the point in Day v. Bond, 500 F.3d 1127, 1139 (10th
Cir. 2007), when it explained: “Section 1623 does not provide that ‘No
nonresident citizen shall be denied a benefit’ afforded to an illegal alien, but




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                             FOSS, et al. v. ABOR
                             Decision of the Court

rather imposes a limit on the authority of postsecondary educational
institutions.” Id.

¶20           Section 1623 is directed at institutional practices, curtailing
the authority of educational institutions to grant in-state tuition benefits to
undocumented aliens, which explains why the statute is codified in a
chapter of the federal immigration code entitled “Restricting Welfare and
Public Benefits for Aliens.” See generally 8 U.S.C. §§ 1601 to 1646 (emphasis
added). “[Section] 1623 addresses itself to the institutions affected and their
authority to provide benefits to illegal aliens, not to the class of nonresident
citizens who incidentally benefit from its provisions.” Day, 500 F.3d at 1139.
Plaintiffs’ complaint likewise describes the statute as “a comprehensive
statutory scheme for determining aliens’ eligibility for federal, state, and local
benefits,” rather than as one for determining tuition benefits for non-
resident students.

¶21            For their part, Plaintiffs argue the superior court erroneously
concentrated on whether Section 1623 conferred a “private right of action”
on non-resident students, insisting that “none of [Plaintiffs’] causes of
action are in any way related to the theory that [Section] 1623 confers upon
them a private right of action.” But Plaintiffs miss the larger point. The
UDJA claim fails because Plaintiffs have no protectible interest under Section
1623 in the first place.

¶22           Because Plaintiffs have not sufficiently alleged a protectible
interest and justiciable controversy under Section 1623, the superior court
properly dismissed their declaratory judgment claim. See Town of
Wickenburg v. State, 115 Ariz. 465, 468 (App. 1977) (“At the time they
attempted to bring this lawsuit, the individual plaintiffs had no rights
presently affected. They were, therefore, not in sufficiently direct
relationship with the allegedly offending statute to present this Court with
an existing controversy capable of judicial resolution.”).

                               Breach of Contract

¶23            Plaintiffs further contend the superior court erred in
dismissing their breach of contract claim, alleging that ABOR breached its
contracts with all non-resident students by charging them tuition rates
“specifically prohibited” under Section 1623.

¶24            A breach of contract claim requires “the existence of the
contract, its breach and the resulting damages.” Thomas v. Montelucia Villas,
LLC, 232 Ariz. 92, 96, ¶ 16 (2013). These minimum requirements are not
alleged in the complaint. Plaintiffs never allege that ABOR breached an


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                           FOSS, et al. v. ABOR
                           Decision of the Court

actual contract term. In fact, their allegations point in the opposite
direction: Plaintiffs describe the contract between ABOR and the non-
resident students as “an exchange of consideration in the form of tuition
monies and educational services,” but never allege that ABOR failed to
deliver on the promise of “educational services,” and concede they paid
non-resident tuition as non-resident students.

¶25            Rather than an express contract term, Plaintiffs contend that
Section 1623 and all federal statutes are grafted into ABOR’s contracts as
independent, stand-alone terms, and ABOR breached that term, citing
Ansley v. Banner Health Network, 246 Ariz. 240, ¶ 47 (App. 2019). We do not
read Ansley to incorporate all federal statutes into ABOR’s contracts, but
Plaintiffs’ argument would still fail because Section 1623 articulates no
entitlement for all non-resident students to receive in-state tuition if an
undocumented alien receives that tuition. Day, 500 F.3d at 1139.

¶26           Plaintiffs have also offered White v. Mattox, 127 Ariz. 181
(1980), for the point that ABOR’s student contracts must be rescinded
because ABOR “charged an amount that they [were] specifically prohibited
from charging by federal law.” But White neither stands for that
proposition nor supports Plaintiffs’ claims. In White, the court found “no
contract result[ed]” based on a “total failure of consideration” when the
parties agreed to transfer a non-transferable liquor license. White, 127 Ariz.
at 184. Here, by contrast, Plaintiffs allege an enforceable contract that
ABOR breached; and rather than “a total failure of consideration,” Plaintiffs
allege that “consideration” was “exchange[d]” as tuition for “educational
services.” Thus, we affirm the court’s dismissal of Plaintiffs’ breach of
contract claim.

                             Unjust Enrichment

¶27           Last, Plaintiffs claim that ABOR was unjustly enriched
through its “improper collections in violation of federal law.” A prima facie
unjust enrichment claim requires an enrichment, an impoverishment, a
connection between them, no justification for the same, and no remedy at
law. Freeman v. Sorchych, 226 Ariz. 242, 251 (App. 2011).

¶28            Plaintiffs have not alleged the minimum requirements of an
unjust enrichment claim, including an enrichment and impoverishment. To
begin, Plaintiffs received the agreed-upon university education in return
for the tuition amount that Plaintiffs agreed to pay. Brooks v. Valley Nat’l
Bank, 113 Ariz. 169, 174 (1976) (“A person is not entitled to compensation
on the grounds of unjust enrichment if he receives from the other that which



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                           FOSS, et al. v. ABOR
                           Decision of the Court

it was agreed between them the other should give in return.” (citing
Restatement of Restitution § 107, cmt. 1(a))). Moreover, Section 1623 does
not create or confer any educational benefits on non-resident students to
receive postsecondary educational benefits. Day, 500 F.3d at 1139.
Furthermore, ABOR’s tuition rates were justified by Arizona law, which
bars non-resident students from receiving in-state tuition. A.R.S. § 15-
1802(A). The superior court properly dismissed the unjust enrichment
claim.

                              CONCLUSION

¶29          We affirm the superior court’s dismissal of Plaintiffs’ claims
under Rule 12(b)(6). And because Plaintiffs have not prevailed on appeal,
we decline their request for attorney’s fees.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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