IN THE COURT OF APPEALS OF IOWA

No. 13-0606

Filed April 30, 2014

ROBERT J. BRUNKHORST and RANDALL E. LEWIS,

Individually and as Representative of all Similarly

Situated IOWA PUBLIC EMPLOYEES’ RETIREMENT

SYSTEM MEMBERS,

Plaintiffs-Appellants,

vs.

IOWA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM,

THE STATE OF IOWA, INVESTMENT BOARD OF

IOWA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, and

ALL ADVISORS AND CONSULTANTS OF IOWA PUBLIC

EMPLOYEES’ RETIREMENT SYSTEM,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Christopher L. 

McDonald, Judge.

The plaintiffs appeal from the district court ruling granting the defendants’

motion for summary judgment. AFFIRMED.

Alexander E. Wonio and David L. Brown of Hansen, McClintock & Riley, 

Des Moines, for appellants.

Thomas J. Miller, Attorney General, and Tyler M. Smith, Assistant 

Attorney General, Department of Special Litigation, Des Moines, for appellees.

Heard by Potterfield, P.J., and Doyle and Mullins, JJ. McDonald, J., takes 

no part.
2

DOYLE, J.

Plaintiffs Robert Brunkhorst and Randall Lewis appeal from the district 

court’s ruling granting the defendants’ motion for summary judgment. The district 

court ruled there was no triable issue of fact on the wanton or malicious conduct 

claim as to any defendant, the plaintiffs lacked standing, the plaintiffs’ claims 

were barred by the statute of limitations, and the plaintiffs’ claims were barred by 

discretionary-function immunity. We choose to affirm on the standing ground.

I. Background Facts and Proceedings.

The district court set forth the background facts from the summary 

judgment record as follows:

[The Iowa Public Employees’ Retirement System (IPERS)] is 

an independent agency charged with administering the defined 

benefit retirement system established under Iowa Code chapter 

97B. Iowa Code § 97B.1(1) [(1999)1]. IPERS is administered by its 

chief executive officer, who, at times material to this action, was 

[Gregory] Cusack. Id. § 97B.4. Moneys collected pursuant to 

chapter 97B, together with all interest, dividends, rents, securities 

or investment income, and assets, are held in the Iowa Public

Employees’ Retirement Fund (“retirement fund”) separate and apart 

from all other public moneys of the state of Iowa. Id. § 97B.7(1). 

The treasurer of the state of Iowa is the custodian of the retirement 

fund. Id. § 97B.7(2). The investment board of [IPERS] (“board”) is 

the trustee of the retirement fund. Id. § 97B.8A. The board is 

charged with establishing policy and reviewing policy 

implementation in matters relating to the investment of the 

retirement fund. Id. The board is also charged with the duty of 

selecting the actuary to be employed by the system and adopting 

all other necessary factors for use in actuarial calculations required 

in administering IPERS. Id. §§ 97B.8, .59.

Participants in the retirement system are called “members”

of IPERS. Id. § 97B.1A(14). Active members of IPERS and their 

respective employers are required to make “contributions,” or 

payments, to IPERS to fund retirement benefits. See id.

§§ 97B.1A(7), .11. In 1999, an employee member’s required 

 

1 The citations to the Iowa Code in this opinion refer to the 1999 Code of Iowa 

unless otherwise noted.
3

contribution was 3.7% of the employee’s covered wages. Id.

§ 97B.11. An employer’s required contribution was 5.75% of an 

employee member’s covered wages. Id. . . . [U]nder this 

contribution formula, an employee member contributed 40% and an 

employer contributed 60% of the total contribution. [See, e.g., id. 

§ 97B.72(2)(b); Iowa Admin. Code r. 581-21.24(6)(d) (1999)

(setting forth cost of “service buy-in/buy-back” for legislative 

members).]

. . . .

A “member” of IPERS is [statutorily defined as] an employee 

or former employee who maintains his or her “accumulated 

contributions” in the retirement system. Iowa Code § 97B.1A(14). 

In 1999, upon termination of employment prior to retirement, a 

member could, among other things, request and receive a refund of 

his or her accumulated contributions. Id. § 97B.53(4). By 

definition, this amount did not include the accumulated employer 

contributions for the employee, which IPERS retained. See id. 

§ 97B.1A(2) (defining “accumulated contributions” as individual 

contributions by the member”). A former employee is no longer a 

member of IPERS if he or she received a refund of his or her 

accumulated contributions. Id. § 97B.1A(14).

Under certain circumstances, a member may purchase 

service credits by paying additional monies into IPERS and thereby 

increasing the number of service years applied toward retirement. 

See, e.g., id. § 97B.74. There are two types of service credits: buybacks and buy-ins. [See Iowa Admin. Code r. 581-21.24.] Prior to 

July 1, 1999, a [former] vested or retired member who received a 

refund of his or her accumulated contributions could “buy-back”

service credits by repaying the accumulated contributions received 

plus accumulated interest and interest dividends, from the date of 

receipt to the date of repayment. See Iowa Code § 97B.74 (1997). 

The repayment amount thus only included the employee’s 

accumulated contributions refunded. See id. (1997). A [former] 

member could also purchase service credit for service rendered to 

another public employer, which is referred to as a “buy-in.” [See id. 

§ 97B.43 (1997); Iowa Admin. Code r. 581-21.24(2) (1997).] Unlike 

a buy-back, a buy-in required the [former] member to pay both the

employee and employer contribution for each calendar quarter of 

service purchased. [See Iowa Code § 97B.43 (1997) (requiring the 

individual to redeposit any withdrawn “contributions”); see also id.

§ 97B.41(7) (1997) (defining “contributions” as “payments to the 

fund required herein, by the employer and by the members, to 

provide the benefits of the system”); Iowa Admin. Code r. 581-

21.24(2)(b) (1997) (requiring the individual to make “employer and 

employee contributions to IPERS” for buy-in).]

In 1998, a study conducted by IPERS’s actuarial service 

firm, Milliman and Robertson (“Milliman”), concluded that buy-backs 
4

and buy-ins were being purchased disproportionately by older 

members who were able to determine more easily the net benefit of 

the purchase. This adverse selection or selection bias was 

resulting in an unfunded actuarial accrued liability because of the 

manner in which service purchases were being funded.

In 1998, the general assembly amended chapter 97B in two 

respects material to this litigation. See 1998 Iowa Acts ch. 1183. 

The two amendments—and IPERS’s response to the same—are 

the crux of the parties’ dispute.

. . . .

The summary judgment record establishes that . . . [the 

legislature] made two amendments to chapter 97B relevant to this 

litigation. See id. First, one amendment required that, effective 

July 1, 1999, all members wishing to purchase service credit “make 

contributions in an amount equal to the actuarial cost of the service 

purchase.” Id. § 67 (codified at Iowa Code § 97B.74(2)(b)). The 

amendment further provided that “the actuarial cost of the service 

purchase is an amount determined by the department in 

accordance with actuarial tables, as reported to the department by 

the system’s actuary, which reflects the actuarial cost necessary to 

fund an increased retirement allowance resulting from the purchase 

of additional service.” Id. . . .

Second, the same legislation also amended the provision 

regarding payment of contributions upon termination of employment 

prior to retirement. See id. § 57 (codified at Iowa Code § 97B.53). 

The amendment provided that “for a vested member, the 

accumulated employer contributions for the vested member” be 

paid on application. See id. Prior to this amendment, the law 

allowed only the refund of the employee’s accumulated 

contributions and not both the accumulated contributions and the 

accumulated employer contributions. [See Iowa Code § 97B.53 

(1997).]

The summary judgment record establishes that IPERS 

worked with its actuary, Milliman, to implement the actuarial cost 

formula as required. In anticipation of the amendment, Milliman 

and IPERS discussed amending their contract to provide for the 

calculation of individualized actuarial costs for service purchases. 

In December 2008, IPERS finalized the amendment to the Milliman 

contract, and Milliman agreed to provide IPERS “twice a month in 

the individualized actuarial cost of service purchases.” Notably, the 

contract required that the cost of service purchases calculated by 

Milliman “shall be based on the applicable law, administrative rules, 

and any other written instructions provided by IPERS.” By 

February 1999, IPERS and Milliman had agreed upon the 

calculation methodology used to determine the “actuarial cost” of

service purchases. Under the methodology, the contribution 

required for a buy-back would reflect a 60% actuarial credit to 
5

reflect that IPERS retained the accumulated employer contributions

after the member received the refund of accumulated contributions.

Under the methodology, buy-ins did not receive actuarial credit 

because no corresponding accumulated employer contributions 

reduced the actuarial cost of the service purchase. IPERS 

implemented the statutory changes by the effective date and began 

requiring members to pay the actuarial costs, as determined by 

IPERS and Milliman, for both buy-backs and buy-ins.

IPERS continued to distinguish between the contributions 

required for buy-backs and buy-ins through January 14, 2004, on 

the basis that, with respect to buy-backs, the accumulated

employer’s contributions remained with IPERS after the member 

received a refund of his or her accumulated contributions. Effective 

January 14, 2004, IPERS changed its actuarial cost formula for 

buy-backs by discontinuing the application of the actuarial credit. In 

January 2004, Cusack sent a memo to members explaining the 

change. Cusack explained that the actuarial credit applied to buybacks was unsound insofar as it failed to reflect the 1999 

amendment that allowed vested members to receive a portion of 

accumulated employer contributions plus interest. He explained 

that IPERS and “especially ‘me,’ Greg Cusack” “goofed in not 

catching the need for this change five years ago!”

[The Fiscal Services Division of the Iowa Legislative Service 

Agency] concluded that between the effective date of the law and 

the effective date of IPERS’s January 2004 change, 3523 

employees purchased buy-backs. If those members had paid 

contributions in accord with IPERS’s new actuarial cost 

methodology for buy-backs, IPERS would have collected an 

additional $29.2 million in contributions, assuming that the same 

number of members would have completed the buy-backs at the 

higher price. In addition, because IPERS honored price quotes 

through September 2004, IPERS would have collected an

additional $8.6 million in contributions from an additional 600 

employees who exercised their buy-back rights under the old 

formula. In total, viewing the facts in the light most favorable to the 

plaintiffs, IPERS admitted incorrect actuarial cost methodology 

resulted in lost contributions in the amount of $37.8 million.

(Internal footnotes omitted.)

Plaintiff Robert Brunkhorst first became an IPERS member in 1995, and 

he made contributions to IPERS from then until sometime in 2006. In 2006, 

Brunkhorst stopped making contributions to IPERS; however, he did not request 

a refund of his contributions. He thereby became an inactive member of IPERS. 
6

See Iowa Code § 97B.1A(12) (2005) (defining “inactive member”). He remained 

inactive from 2007 to 2009. He became an active member again in 2010, when 

he returned to public service. At that time, he re-enrolled in IPERS and again 

began making contributions to IPERS, changing his status from an inactive 

member to active member. See id. § 97B.1A(3) (2007) (defining “active 

member”). At all relevant times, Brunkhorst never received a refund of 

contributions nor did he ever purchase a service credit via buy-back or buy-in.

On January 13, 2006, Brunkhorst filed a claim with the Iowa State Appeal 

Board pursuant to the Iowa Tort Claims Act, Iowa Code chapter 669, alleging a 

tort claim against the State, IPERS, and others, as a member of a class. His 

claim was based upon the flaw in IPERS’s actuarial methodology implemented in 

response to the 1999 legislation. He alleged $37 million in property damages. 

His claim was denied in August 2006.

On February 7, 2007, Brunkhorst filed a petition in district court against the 

defendants alleging a class action suit with numerous counts, including a 

common-law claim for breach of fiduciary duty. At that time, Brunkhorst was not 

an active member of IPERS because he was not paying any contributions to 

IPERS and had not sought retirement benefits.

The defendants filed a motion to dismiss the petition on numerous 

grounds. After a hearing, the motion was granted by the district court. 

Brunkhorst appealed the ruling, and we reversed the district court’s dismissal 

order and remanded the case for further proceedings. See Brunkhorst v. Iowa 

Pub. Emps.’ Ret. Sys., No. 07-1340, 2008 WL 4724726, *1 (Iowa Ct. App. Oct. 

29, 2008).
7

In July 2009, an amended petition was filed adding plaintiff Randall E. 

Lewis to the case (hereinafter “the plaintiffs”). Lewis had been an active member 

of IPERS from 1991 to 2007. He made an application for a service purchase on 

December 21, 2007, but he never completed the purchase. He began receiving 

IPERS benefits in January 2009. He filed a tort claim on July 1, 2009, which was 

denied on October 5, 2009. Lewis never claimed a reduction in benefits.

The defendants filed a motion for summary judgment. Following briefing 

and hearings, the district court entered its thorough and well-reasoned twentynine-page ruling granting the defendants’ motion.2

 Specifically, the court found 

each of the grounds urged by the defendants supported summary judgment, 

concluding: (1) the plaintiffs failed to create a triable issue of fact on their breachof-fiduciary-duty common-law claim because there was not sufficient evidence 

from which a jury could infer that the defendants engaged in wanton or malicious 

conduct; (2) the plaintiffs lacked standing to bring the claim; (3) the district court 

was without jurisdiction over the plaintiffs’ claim, and (4) discretionary-function 

immunity barred the plaintiffs’ claim against the defendants.

The plaintiffs now appeal.

II. Scope and Standards of Review.

We review a district court’s ruling on summary judgment for correction of 

errors of law. Iowa R. App. P. 6.907; Osmic v. Nationwide Agribusiness Ins. Co., 

841 N.W.2d 853, 858 (Iowa 2014). Summary judgment is appropriate if “the 

pleadings, depositions, answers to interrogatories, and admissions on file, 

 

2

In its ruling, the court also granted the defendants’ motion to dismiss the 

plaintiffs’ claims against Gregory Cusack, individually and as a representative of all 

personnel of IPERS. This is not an issue on appeal.
8

together with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter of 

law.” Iowa R. Civ. P. 1.981(3); Thomas v. Gavin, 838 N.W.2d 518, 521 (Iowa 

2013). We examine the record in the light most favorable to the nonmoving 

party, Sallee v. Stewart, 827 N.W.2d 128, 133 (Iowa 2013), and we “afford the 

nonmoving party every legitimate inference that can be reasonably deduced from 

the evidence.” Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494, 501 (Iowa 

2013) (citation and internal quotation marks omitted).

“An issue is ‘material’ only when the dispute is over facts that might affect 

the outcome of the suit, given the applicable governing law.” Sallee, 827 N.W.2d 

at 132-33 (citation and internal quotation marks omitted). “If reasonable minds 

can differ on how the issue should be resolved, a fact question is generated, and 

the district court should deny summary judgment.” Boelman, 826 N.W.2d at 501

(citation and internal quotation marks omitted). However, if the “motion for 

summary judgment is properly supported, the nonmoving party is required to 

respond with specific facts that show a genuine issue for trial.” Mueller v.

Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa 2012) (citation and internal quotation 

marks omitted). Our role on appeal is to decide whether the district court 

correctly determined there was not sufficient evidence to submit the issue to the 

jury. See Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 

300 (Iowa 2013); see also Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 

73 (Iowa 2013) (finding a defendant’s conduct did not amount to unlawful 

discrimination under the facts). “We can resolve a matter on summary judgment 
9

if the record reveals a conflict concerning only the legal consequences of 

undisputed facts.” Boelman, 826 N.W.2d at 501.

III. Discussion.

On appeal, the plaintiffs challenge all of the grounds for summary 

judgment found by the district court in its ruling. However, we need only find one 

ground sustainable to uphold the ruling. See Bartsch v. Bartsch, 636 N.W.2d 3, 

6 (Iowa 2001); see also In re Estate of Voss, 553 N.W.2d 878, 879 n. 1 (Iowa 

1996); Grefe & Sidney v. Watters, 525 N.W.2d 821, 826 (Iowa 1994). Because 

we agree with the district court that summary judgment was proper because the 

plaintiffs lacked standing, we find that ground dispositive. Therefore, it is the only 

issue we will discuss.

Standing refers to “[a] party’s right to make a legal claim or seek judicial 

enforcement of a duty or right.” Black’s Law Dictionary 1413 (7th ed. 1999). If 

the party asserting a claim lacks standing, the court will not hear the claim, even 

if the legal controversy asserted could be meritorious. See Alons v. Iowa Dist.

Ct., 698 N.W.2d 858, 864 (Iowa 2005). Stated another way, “[w]hether litigants 

have standing does not depend on the legal merit of their claims, but rather 

whether, if the wrong alleged produces a legally cognizable injury, they are 

among those who have sustained it.” Citizens for Responsible Choices v. City of 

Shenandoah, 686 N.W.2d 470, 475 (Iowa 2004). Consequently, when a 

standing issue is raised, our focus is on the party asserting the claim and not the 

merits of the party’s claim. See Alons, 698 N.W.2d at 864.

Iowa’s “standing inquiry has two distinct prongs, each of which a plaintiff 

must satisfy to proceed with a claim. Our cases have determined that a 
10

complaining party must (1) have a specific personal or legal interest in the 

litigation and (2) be injuriously affected.” Horsfield Materials, Inc. v. City of 

Dyersville, 834 N.W.2d 444, 452 (Iowa 2013) (citation and internal quotation 

marks omitted). “To satisfy the first element, we require the litigant to allege 

some type of injury different from the population in general. To satisfy the 

second element, the injury cannot be ‘conjectural’ or ‘hypothetical,’ but must be 

‘concrete’ and ‘actual or imminent.’” Hawkeye Foodservice Distribution, Inc. v.

Iowa Educators Corp., 812 N.W.2d 600, 606 (Iowa 2012) (internal citations and 

quotation marks omitted).

The Iowa Supreme Court has further observed:

While both Iowa and federal case law on the application of 

standing to public-interest litigation has largely focused on the type 

of factual injury required to support standing, federal law has also 

developed additional elements that are particularly applicable when 

the “asserted injury arises from government’s allegedly unlawful 

regulation (or lack of regulation) of someone else,” as opposed to 

cases in which the “plaintiff is himself an object of the action (or 

foregone action) at issue.” Lujan v. Defenders of Wildlife, [504 U.S. 

555, 561-62 (1992)]. Under such a circumstance, the plaintiff must 

establish “a causal connection between the injury and the conduct 

complained of” and that the injury is “‘likely,’ as opposed to merely 

‘speculative,’ to be ‘redressed by a favorable decision.’” [Id.]. 

These two additional considerations largely relate to the prudential 

concerns we have recognized, and we too have relied on them to 

resolve standing claims in the past. For example, in Citizens for 

Responsible Choices, we were presented with an action by a group 

of citizens who sought a declaration that a public-improvement 

project was illegal because the bonds to finance the project were 

allegedly issued in violation of the law. 686 N.W.2d at 472. The 

project included the construction of a recreational lake and park on 

land owned or rented by the citizens. Id. We held the citizens 

group had no standing to challenge the action in the issuance of the 

revenue bonds because the injury claimed came from the project 

itself, not the governmental action in the issuance of the bonds. Id. 

at 475. To borrow from the federal language, the injury was not 

“fairly traceable” to the challenged action. Lujan, [504 U.S. at 560].
11

Godfrey v. State, 752 N.W.2d 413, 421-22 (Iowa 2008); see also Alons, 698 

N.W.2d at 867-68 (discussing the additional standing elements established by 

federal case law as discussed in Lujan).

In Lujan, the U.S. Supreme Court discussed the additional standing 

elements in relation to a motion for summary judgment. See 504 U.S. at 560-61. 

The Court noted that because the standing elements are “an indispensable part 

of [a] plaintiff’s case, each element must be supported in the same way as any 

other matter on which the plaintiff bears the burden of proof, i.e., with the manner 

and degree of evidence required at the successive stages of the litigation.” Id. at 

561. Although general factual allegations by the plaintiff of injury resulting from 

the defendant’s conduct may suffice at the pleading stage, the plaintiff can no 

longer rest on mere allegations in response to a defendant’s summary judgment 

motion. See id. Rather, the plaintiff “must set forth by affidavit or other evidence 

specific facts which for purposes of the summary judgment motion will be taken 

to be true.” Id. (internal citation and quotation marks omitted). “Standing is not 

an ingenious academic exercise in the conceivable, but as we have said 

requires, at the summary judgment stage, a factual showing of perceptible harm.” 

Id. at 566 (internal citation and quotation marks omitted). The Court further noted 

that “standing is to be determined as of the commencement of suit.” Id. at 571 

n.5.

The plaintiffs acknowledge in their reply brief that the additional standing 

elements set forth in Lujan, as discussed in Godfrey, apply here. See Godfrey, 

752 N.W.2d at 421-22; see also Lujan, 504 U.S. at 560-61. Additionally, the 

plaintiffs agree that standing is to be determined as of the commencement of 
12

suit, as stated in Lujan.

3

 However, they maintain that they suffered an “injury-infact” because they have continued “to allege that the failure to implement the 

statutory change jeopardized [their] future benefits.” We disagree.

Here, when Brunkhorst filed suit, he was an inactive member of IPERS 

and was not making any contributions to the fund. He pled in his original petition 

that the defendants’ “failure to implement the statutory mandate . . . has 

contributed toward a need for increased and/or additional contributions from 

[Brunkhorst].” The evidence, as consequently fleshed out in the summary 

judgment record, shows Brunkhorst had not paid any increased contribution rate 

at the time of the filing of his suit. There is no evidence in the summary judgment 

record, but for his own belief, that his future IPERS benefits were in jeopardy. 

The same applies for Lewis. Although he was an active member and making 

contributions to IPERS at the time Brunkhorst filed suit, he was not, at that time, 

required to pay at an increased rate. Again, there was no evidence presented, 

but for his own belief, that his future IPERS benefits were in jeopardy. The 

plaintiffs have failed to present any evidence they suffered an actual injury in fact, 

and, thus, a legally cognizable injury. Consequently, we agree with the district 

court’s determination that there was not sufficient evidence of a genuine issue of 

material fact as to standing to submit the matter to the jury.

 

3 Although our supreme court has not officially adopted this language and could 

choose to interpret our constitution differently, its prior adoption of language from Lujan, 

along with its general acceptance of similar parallel federal standing analysis, supports 

the conclusion our supreme court would agree. See Godfrey, 752 N.W.2d at 418; Alons, 

698 N.W.2d at 869. Nevertheless, because the plaintiffs do not challenge the 

proposition, we do not address it any further.
13

Because we agree, for purposes of summary judgment, the plaintiffs failed 

to establish a genuine issue of material fact that they suffered an actual injury in 

fact and therefore a legally cognizable injury, we conclude the district court did 

not err in granting the defendants’ motion for summary judgment. Accordingly, 

we affirm the ruling of the district court.

AFFIRMED.