Soltani v. Colo PERA

24CA0707 Soltani v Colo PERA 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0707
City and County of Denver District Court No. 23CV31175
Honorable J. Eric Elliff, Judge

Jason Soltani,

Plaintiff-Appellant,

v.

Colorado Public Employees’ Retirement Association Board of Trustees,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE KUHN
J. Jones and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2025

Jason Soltani, Pro Se

Fox Rothschild LLP, Caleb Durling, Spencer R. Allen, Denver, Colorado, for
Defendant-Appellee
¶1 Plaintiff, Jason Soltani, appeals the district court’s judgment

upholding the Colorado Public Employees’ Retirement Association

(PERA) Board of Trustees’ determination that he is not entitled to be

placed on PERA benefit structure “Table 2.”1 He also appeals the

court’s dismissal of his constitutional claims asserting violations of

the equal protection and ex post facto clauses. We affirm.

I. Background

¶2 According to PERA records, Soltani first began his

PERA-covered employment in November 1998, which resulted in

PERA membership starting on December 1, 1998. He remained in

that position until February 2001. In October 2002, Soltani applied

for a refund of his PERA membership account.

¶3 In the refund request document he signed, Soltani

acknowledged that (1) he was forfeiting his right to any PERA

benefits; (2) he had read the “Terminating PERA-Covered

Employment” publication that informed him that he would “forfeit

any benefit rights [he] may have had as a member”; and (3) he was

1 The PERA benefit structure tables explain what retirement benefit

a PERA member will receive — and whether that benefit is reduced
— based on a combination of age and years of PERA-covered
service.

1
solely responsible for all taxes and consequences of the decision to

refund his account. However, Soltani later asserted that, at the

time he refunded his account, a PERA representative advised that if

he repurchased his membership account at a later date, “he would

be placed back in the same position that he held before refunding

his account.” Soltani received $8,722 from his account refund.

¶4 In May 2004, the Colorado legislature passed Senate Bill

04-132. Ch. 214, 2004 Colo. Sess. Laws 695. The new legislation

included section 24-51-602(1)(a.5), C.R.S. 2004 (effective July 1,

2005)2, a statutory provision that resulted in a new PERA benefit

structure table, “Table 4.” That provision applied to any person

who became a PERA member after July 1, 2005. In November

2005, Soltani returned to PERA-covered employment. Based on his

start date, PERA placed him on the newly created Table 4. Less

than a year later, the legislature again revisited the PERA statutes.

On May 25, 2006, Senate Bill 06-235 was signed into law, enacting

2 Because section 24-51-602(1)(a.5), C.R.S. 2004 (effective July 1,

2005), has since been amended, see Ch. 2, sec. 12,
§ 24-51-602(1)(a.5), 2010 Colo. Sess. Laws 11-12, this opinion
refers to the version that became effective on July 1, 2005,
throughout.

2
section 24-51-405(8), C.R.S. 2024. Ch. 259, 2006 Colo. Sess. Laws

1173. Subsection (8) applies to individuals, such as Soltani, who

quit PERA-covered employment and refund their accounts but later

recommence their PERA membership. See § 24-51-405(8). It

clarifies that an individual in this situation has no rights associated

with earlier membership. Id.

¶5 In November 2011, Soltani received a letter from PERA telling

him that Table 2 dictated his retirement benefit eligibility. Soltani

says that he based his retirement goals on Table 2. After saving

money for a few more years, Soltani applied to repurchase prior

service credit associated with his earlier membership in November

2019. PERA provided him with a “Purchasing Service Credit”

brochure informing him that “purchasing service credit based on a

rolled over/refunded [Defined Benefit] Plan account w[ould] not . . .

[e]ntitle [him] to the benefit provisions associated with [his] previous

period of membership.” The service credit purchase agreement

noted that he would be “reinstat[ing] a refunded PERA account” for

the period of December 1, 1998, to February 28, 2001. Soltani

completed the purchase the next year for $33,066.

3
¶6 In July 2021, Soltani contacted PERA about his retirement

eligibility. The PERA representative’s call log indicates that

“[Soltani] thought he would be put onto his original table when he

[r]einstated his refunded time.” Soltani requested that PERA place

him on Table 2 instead of Table 4, but PERA denied his request. He

then moved for administrative review, and PERA staff determined

that he was correctly placed on Table 4.

¶7 Soltani appealed the staff determination to PERA’s executive

director, who issued an initial decision denying his request. He

then appealed the director’s denial to PERA’s administrative

hearings panel, alleging detrimental reliance, promissory estoppel,

and equitable estoppel.3 The panel held a hearing and adopted

findings of facts and conclusions of law. It denied his equitable

claims and determined that Soltani was not entitled to be placed on

Table 2. Soltani appealed the panel’s decision to the PERA Board,

which held a second hearing and affirmed the panel’s decision.

After exhausting his administrative remedies, Soltani filed a

3 We note that Soltani does not seek a recission of his agreement to

repurchase PERA service credits. Instead, he seeks to keep the
agreement and his service credits in place and have PERA place
him on his preferred table.

4
complaint for judicial review under C.R.C.P. 106(a)(4). That

complaint sought review of the Board’s decision to deny his

promissory estoppel claim and added his two constitutional claims.

¶8 PERA moved to dismiss the constitutional claims under

C.R.C.P. 12(b)(5). The district court granted PERA’s motion and

dismissed both claims. Subsequently, the court heard argument on

the remaining promissory estoppel claim and affirmed the Board’s

decision. Now, Soltani appeals the district court’s dismissal of his

constitutional claims and affirmance of the Board’s decision.

II. Analysis

¶9 Soltani contends that the district court erred by (1) dismissing

his equal protection claim; (2) dismissing his ex post facto claim;

and (3) denying his claim for promissory estoppel and affirming

5
PERA’s determination that he was not entitled to placement on

Table 2. We address his claims in turn.4

A. Soltani’s Constitutional Claims

¶ 10 Soltani argues that the district court erred by dismissing his

constitutional claims under Rule 12(b)(5). Specifically, he contends

that (1) PERA’s refusal to place him on Table 2 violates the equal

protection clause of the federal and state constitutions, and

(2) section 24-51-405(8) violates the federal and state ex post facto

clauses. We first set forth the proper standard of review before

turning to each of his contentions.

1. Standard of Review and Applicable Law

¶ 11 “We review a [district] court’s ruling on a motion to dismiss de

novo, ‘applying the same standards as the [district] court.’” Sch.

4 Soltani appears pro se in this appeal. Thus, we review the
substance of his arguments to ensure he is not denied review of
important issues if he is unable to articulate his arguments like a
lawyer. See Jones v. Williams, 2019 CO 61, ¶ 5. But we apply the
same law and procedural rules applicable to a party represented by
counsel. See Gandy v. Williams, 2019 COA 118, ¶ 8; People v.
Bergerud, 223 P.3d 686, 697 (Colo. 2010) (“[T]he papers of pro se
litigants are construed liberally.” (citing Marmolejo v. United States,
196 F.3d 377, 378 (2d Cir. 1999) (per curiam))). We won’t, however,
rewrite his arguments or act as an advocate on his behalf. See
Johnson v. McGrath, 2024 COA 5, ¶ 10.

6
Dist. No. 1 v. Masters, 2018 CO 18, ¶ 13 (quoting Bly v. Story, 241

P.3d 529, 533 (Colo. 2010)). “Accordingly, we accept all factual

allegations in the complaint as true and view them in the light most

favorable to the plaintiff.” Fry v. Lee, 2013 COA 100, ¶ 17.

However, “we are not required to accept as true legal conclusions

that are couched as factual allegations.” Id. “Dismissal is proper

when the plaintiff’s factual allegations cannot support a claim as a

matter of law.” Graham v. Maketa, 227 P.3d 516, 518 (Colo. App.

2010). Likewise, we review challenges to the constitutionality of

statutes, including as-applied challenges, de novo. Adams v. Sagee,

2017 COA 133, ¶ 5.

¶ 12 “The Equal Protection Clause of the Fourteenth Amendment

provides that no state shall ‘deny to any person within its

jurisdiction the equal protection of the laws.’” People v. Castillo,

2022 COA 20, ¶ 17 (quoting U.S. Const. amend. XIV, § 1). And

“[a]lthough the Colorado Constitution does not contain an identical

provision, it is well-established that a like guarantee exists within

the constitution’s due process clause, Colo. Const. [a]rt. II, [§] 25,

and that its substantive application is the same insofar as equal

7
protection analysis is concerned.” Lujan v. Colo. State Bd. of Educ.,

649 P.2d 1005, 1014 (Colo. 1982).

¶ 13 “The threshold inquiry in an equal protection analysis is

whether persons who are similarly situated are subjected to

disparate treatment by a governmental act.” Movitz v. Div. of Emp.

& Training, 820 P.2d 1153, 1155 (Colo. App. 1991). “Unless [the

two groups of people] are similarly situated, the equal protection

guarantee is not implicated.” Castillo, ¶ 18 (quoting Buckley

Powder Co. v. State, 70 P.3d 547, 562 (Colo. App. 2002)).

¶ 14 “The United States Constitution prohibits both Congress and

the states from enacting ex post facto laws.” Aurora Pub. Schs. v.

A.S., 2023 CO 39, ¶ 37 (citing U.S. Const. art. I, § 9, cl. 3, § 10,

cl. 1). But “these [federal] ex post facto clauses apply only to

criminal statutes.” Id. (citing Calder v. Bull, 3 U.S. 386, 390

(1798)). However, in the civil context, “Colorado’s constitution,

article II, section 11 prohibits both ex post facto laws as well as the

enactment of any law that is ‘retrospective in its operation.’” Id. at

¶ 38.

¶ 15 An act violates the Colorado Constitution’s ex post facto clause

“if it ‘takes away or impairs vested rights acquired under existing

8
laws, or creates a new obligation, imposes a new duty, or attaches a

new disability, in respect to transactions or considerations already

past.’” Ficarra v. Dep’t of Regul. Agencies, 849 P.2d 6, 15 (Colo.

1993) (quoting P-W Invs., Inc. v. City of Westminster, 655 P.2d 1365,

1371 (Colo. 1982)).

2. Soltani Is Not Treated Differently
From Similarly Situated Persons

¶ 16 Our equal protection analysis begins at the threshold question

of whether Soltani’s claim alleges disparate treatment between him

and other similarly situated persons. See Movitz, 820 P.2d at 1155.

¶ 17 Soltani argues that he is treated differently from PERA

members who did not refund their accounts. He asserts that he is

similarly situated to these non-refunding members because his

buyback placed him in the same actuarial position as them. And

he argues that this creates an arbitrary classification between

refunded and nonrefunded members.

¶ 18 We agree that sections 24-51-602(1)(a.5), 24-51-405(4), and

24-51-405(8) create classifications between different groups of

people. They classify those who have refunded their PERA

retirement accounts differently from those who have not, see

9
§ 24-51-405(4), and those who refunded their PERA retirement

accounts before a specific date differently than those who refunded

them after a specific date, see §§ 24-51-602(1)(a.5), -405(8).

However, these groups are, by their very nature, not similarly

situated. See Dallman v. Ritter, 225 P.3d 610, 634 (Colo. 2010).

(“[T]he ‘similarly situated’ inquiry turns not on whether two entities

are superficially alike, but on whether the two are situated or

positioned similarly, thereby allowing one law to affect them

differently.”).

¶ 19 A person who refunded a PERA account is not similarly

situated to someone who never refunded an account. See

§ 24-51-405(4). The nonrefunded class has continuously been in

PERA-covered employment. By contrast, the refunded class

expressly forfeits “[a]ll rights of membership and any future benefits

associated with a member contribution account and matching

employer contributions,” § 24-51-405(4), and to regain member

benefits, that group must go through the statutorily mandated

reinstatement process, see § 24-51-503(1), C.R.S. 2024. Soltani

was in the refunded class.

10
¶ 20 Likewise, a person who refunded an account, resumed

employment, and repurchased service credits before July 1, 2005,

is not similarly situated to someone who took the same actions after

July 1. We recognize that these two groups are superficially alike

as they took the same actions, but they took those actions at

different times. Critically, the controlling law is different between

the two time periods. Compare §§ 24-51-405, C.R.S. 2005, with

24-51-405, C.R.S. 2006. Thus, the two groups are not subject to

one law that affected them differently. Instead, they are subject to

two distinct statutory frameworks with each group having its own

statutory requirements for retirement eligibility. Because each

group is controlled by a different law, they are not similarly

situated. See Dallman, 225 P.3d at 634.

¶ 21 Conversely, under the relevant statutes, every person who is in

Soltani’s position — having earlier refunded an account but again

commenced membership on or after July 1, 2005, but before

January 1, 2007 — is treated the exact same way under the law.

See § 24-51-405(8). As a result, Solani has not been treated

differently than similarly situated individuals.

11
¶ 22 Accepting all factual allegations in his complaint as true and

viewing them in the light most favorable to him, his equal protection

claim fails at the threshold step. Thus, “it appears beyond a doubt

that [Soltani] can prove no set of facts in support of his . . . claim

which would entitle him . . . to relief,” Fry, ¶ 18, and we discern no

error in the district court’s dismissal of his claim under Rule

12(b)(5), see Fry, ¶ 17.

B. Section 24-51-405(8) Does Not
Violate the Ex Post Facto Clause

¶ 23 Soltani contends that section 24-51-405(8) retroactively

impairs his PERA membership benefits and therefore violates the ex

post facto clause.5 In support, Soltani asserts that (1) he had a

right to his PERA retirement pension and placement on Table 2 as

of November 2005 when he recommenced PERA-covered

5 Soltani’s briefing argues a violation of the United States and

Colorado Constitutions. However, “the United States Supreme
Court [has] held that [the federal] ex post facto clauses apply only to
criminal statutes.” Aurora Pub. Schs. v. A.S., 2023 CO 39, ¶ 37
(citing Calder v. Bull, 3 U.S. 386, 390 (1798)). This is a civil case;
therefore, we summarily dispose of his federal contention and
instead focus on his state constitutional claim. See id. at ¶ 38
(stating that the Colorado Constitution’s ex post facto clause applies
to civil cases).

12
employment, and (2) section 24-51-405(8) unconstitutionally

attached a new disability to that right.

¶ 24 Senate Bill 06-235 amended section 24-51-405 to add

subsection (8):

An individual who refunded his or her member
contribution account pursuant to this section
and again commences membership on or after
July 1, 2005, but before January 1, 2007,
whether or not the individual purchases all or
part of the period associated with the refunded
member contribution account, shall have no
rights associated with membership prior to
July 1, 2005, except as mandated by federal
law, and such individual shall not be
considered to have been a member, inactive
member, or retiree on June 30, 2005.

See Ch. 259, sec. 8, § 24-51-405(8), 2006 Colo. Sess. Laws

1178-79.

¶ 25 It’s true that this section took effect on May 25, 2006, which

means that it applies to some events that occurred before its

passage. However, that does not render it inherently

unconstitutional. Instead, our analysis turns on whether section

24-51-405(8) “violates article II, section 11’s prohibition [by]

(1) impair[ing] a vested right; or (2) creat[ing] a new obligation,

13
impos[ing] a new duty, or attach[ing] a new disability with respect to

transactions or considerations already past.” Aurora, ¶ 40.

¶ 26 We first turn to Soltani’s argument that he had a vested right

in his refunded PERA retirement account. Under section

24-51-405(4), Soltani forfeited “[a]ll rights of membership and any

future benefits associated with a member contribution account and

matching employer contributions” when he refunded his PERA

account in 2002. And both at the time he refunded his account

and when he resumed PERA-covered employment in November

2005, section 24-51-503(1) said that “the service credit forfeited

with a refund pursuant to the provisions of section 24-51-405 may

be purchased upon the former member’s resumption of

membership and after completion of one year of earned service

credit by such member.”

¶ 27 This statute’s plain language demonstrates that Soltani had

the right to repurchase service credit only after a year of

employment. Therefore, prior to November 2006, Soltani could

expect only that he would be entitled to repurchase his prior service

credit, not that he had a vested right in his refunded account. See

Nye v. Indus. Claim Appeals Off., 883 P.2d 607, 609 (Colo. App.

14
1994) (“To be vested, a right must consist of more than a mere

expectation based on the anticipation of the continuance of a legal

status, and in the usual case, no person has a vested right in any

rule of law entitling that person to insist it shall remain unchanged

for his or her future benefit.”).

¶ 28 We view Soltani’s factual allegations in the light most favorable

to him. Because the legislature enacted section 24-51-405(8) before

he had a vested right to repurchase his PERA service credits, the

statute did not impact a vested right or create unfairness by

“changing the consequences of an act after that act has occurred.”

City of Colorado Springs v. Powell, 156 P.3d 461, 465 (Colo. 2007).6

¶ 29 Next, we turn to Soltani’s argument that section 24-51-405(8)

attached a new disability to his transaction by prohibiting him from

reinstating his original membership date and his placement on

Table 2. But a statute violates the ex post facto clause in this

regard only if it “attaches a new disability[] in respect to

transactions or considerations already past.” Ficarra, 849 P.2d

6 We recognize that the change in law affected Soltani’s plan or

expectation to retire after a certain period of time, but again, an
expectation is not a vested right.

15
at 15 (quoting P–W Invs., 655 P.2d at 1371). As with his vested

right argument, Soltani’s assertion fails because he forfeited all

rights associated with his PERA retirement account when he

refunded it, and section 24-51-405(8) went into effect before he

could (or did) repurchase his PERA service credits. As a result, the

statute did not attach “a new disability with respect to transactions

or considerations already past.” Aurora, ¶ 40. Thus, the statutory

changes only affected a potential future transaction or expectation

and did not violate the ex post facto clause. See id. at ¶¶ 38-40.

¶ 30 Taking all of Soltani’s asserted facts as true, his ex post facto

claim fails as a matter of law. Thus, we discern no error in the

district court’s dismissal of this claim under Rule 12(b)(5). See Fry,

¶ 17.

C. Promissory Estoppel

¶ 31 Lastly, Soltani contends that the doctrine of promissory

estoppel requires PERA to place him onto Table 2 instead of

Table 4. Based on this, he argues that the district court erred by

affirming the Board’s decision rejecting this argument and denying

placement on Table 2. We disagree.

16
1. Standard of Review and Applicable Law

¶ 32 “Our review under C.R.C.P. 106(a)(4) is limited to ‘a

determination of whether the [governmental] body or officer has

exceeded its jurisdiction or abused its discretion, based on the

evidence in the record before the defendant body or officer.’” Langer

v. Bd. of Comm’rs, 2020 CO 31, ¶ 12 (quoting Ad Two, Inc. v. City &

Cnty. of Denver, 9 P.3d 373, 376 (Colo. 2000)); see C.R.C.P.

106(a)(4)(I). In doing so, we sit in the same position as the district

court and review de novo whether the agency abused its discretion.

Khelik v. City & Cnty. of Denver, 2016 COA 55, ¶ 12; see also Bd. of

Cnty. Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996) (“Review of a

governmental body’s decision pursuant to Rule 106(a)(4) requires

an appellate court to review the decision of the governmental body

itself rather than the district court’s determination regarding the

governmental body’s decision.”). An administrative agency abuses

its discretion only when its decision isn’t reasonably supported by

any competent evidence in the record or is based on a

misinterpretation or misapplication of the law. Khelik, ¶ 13.

¶ 33 No competent evidence means that the decision is “so devoid

of evidentiary support that it can only be explained as an arbitrary

17
and capricious exercise of authority.” Langer, ¶ 13 (quoting

Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d

892, 900 (Colo. 2008)). Thus, “[a]n action by an administrative

agency is not arbitrary or an abuse of discretion when the

reasonableness of the agency’s action is open to a fair difference of

opinion, or when there is room for more than one opinion.” Khelik,

¶ 13.

¶ 34 “In reviewing the agency’s construction [of a statute], we rely

on the basic rules of statutory construction, affording the language

of the provisions at issue their ordinary and common sense

meaning.” City of Commerce City v. Enclave W., Inc., 185 P.3d 174,

178 (Colo. 2008). “Our primary task in interpreting statutes . . . is

to give effect to the intent of the drafters, which we do by looking to

the plain language.” Waste Mgmt. of Colo., Inc. v. City of Commerce

City, 250 P.3d 722, 725 (Colo. App. 2010). “If the language of the

provision at issue is clear and the intent of the legislative body that

enacted it may be discerned with certainty, we may not resort to

other rules of statutory interpretation.” Colo. Health Consultants v.

City & Cnty. of Denver, 2018 COA 135, ¶ 13.

18
2. PERA Was Not Authorized
to Place Soltani on Table 2

¶ 35 The district court determined that Soltani cannot prevail on

his promissory estoppel claim because it seeks to require PERA to

take an action that is not authorized by the law. We agree.

¶ 36 The Colorado Supreme Court has held that “[a] party cannot

state a claim for relief under a theory of estoppel against a state or

local government entity on the basis of an unauthorized action or

promise.” Seeley v. Bd. of Cnty. Comm’rs, 791 P.2d 696, 701 (Colo.

1990). Thus, we turn to controlling statutes and begin our analysis

with whether Soltani’s requested action was authorized.

¶ 37 When Soltani began his PERA-covered employment in 1998,

there was one benefit structure for all non-state trooper members.

See § 24-51-602(1), C.R.S. 1998. But after he left and before he

returned to PERA-covered employment, the legislature passed

Senate Bill 04-132, creating new benefits structures. See Ch. 214,

2004 Colo. Sess. Laws 695; § 24-51-602(1)(a.5). If Soltani had

remained in PERA-covered employment starting in 1998, he would

have been placed on Table 2, which allows an individual to retire

with full benefits at age fifty with thirty years of service credit.

19
However, upon his return in 2005, he was placed on Table 4. That

structure requires a fifty-year-old individual to have thirty-five years

of service credit to retire with full benefits.

¶ 38 As noted above, Soltani forfeited his rights in PERA when he

refunded his account in 2002. See § 24-51-405(4). And during his

absence from PERA-covered employment, the legislature enacted

the new PERA benefits structure in Senate Bill 04-132. The new

structure required that “any person except a state trooper who

becomes a member on or after July 1, 2005, and was not a

member, inactive member, or a retiree on July 1, 2005” would be

subject to the newly created retirement eligibility requirements.7

§ 24-51-602(1)(a.5). This statutory language plainly and

unambiguously required PERA to place Soltani on Table 4 when he

returned to PERA-covered employment in November 2005.

¶ 39 Soltani also argues that once he repurchased service credit,

PERA should have placed him on Table 2 because he was entitled to

benefits from the reinstated earlier employment date. But as set

7 In his reply brief, Soltani argues that he was never on Table 4 and

was always on Table 2. This argument conflicts with his opening
brief, is unsupported by the record, and is refuted by
section 24-51-602(1)(a.5).

20
forth above, section 24-51-405(8) bars an individual with a

refunded PERA account who recommences membership “on or after

July 1, 2005, but before January 1, 2007,” from having any “rights

associated with membership prior to July 1, 2005.” This language

prohibits PERA from taking the exact action that Soltani requests,

namely moving him to the retirement table associated with his prior

membership.

¶ 40 We acknowledge Soltani’s argument that PERA sent him a

letter incorrectly informing him that he was on Table 2 and that he

relied on that letter. It does indeed appear that PERA sent him

incorrect information. However, that letter and its incorrect

information do not change the law. And we need look no further

than the fact that there was no occasion since Soltani’s November

2005 return to PERA-covered employment where it would have been

legal for PERA to place him on Table 2, regardless of his repurchase

of service credits. See §§ 24-51-602(1)(a.5), -405(4), -405(8).

Therefore, Soltani’s promissory estoppel claim is premised on an

unauthorized action or promise, and his requested relief cannot be

sustained. See Seeley, 791 P.2d at 701.

21
¶ 41 Thus, we discern no abuse of discretion in the Board’s

decision rejecting Soltani’s claim. And the district court did not err

by affirming the Board’s decision.

III. Disposition

¶ 42 The judgment is affirmed.

JUDGE J. JONES and JUDGE MOULTRIE concur.

22