RETIREMENT COMMITTEE OF DAK AMERICAS LLC, as Plan Administrator of the DAK Americas LLC Pension Plan; Transamerica Retirement Solutions Corporation, Plaintiffs-Appellees v. Mark Stephen BREWER; Warren Albert Garrison; James F Holland; Sidney Hugh Rhodes, Defendants-Appellants, and Mendell W. Smith; Otella Irene Webb; Jerome Bryant; Joseph Alexander Bellamy; Kelvin L. Galloway; David W. Allen; Michael Lynn Bass; Harold E. Corbett; William Lacey Nelson; Jimmie Ray Sellers; Rodney B. Smith, Defendants.
No. 16-1574, No. 16-1575
United States Court of Appeals, Fourth Circuit
August 14, 2017
867 F.3d 471
AGEE, Circuit Judge
Again, we do not doubt that the district court in this case acted without any intent to influence the jury improperly. And we appreciate that the defendant‘s failure to object at trial—which might have allowed the district court to correct its error in real time—creates an especially “high bar for appellate review.” See id. at 239. But in the particular circumstances of this case, we conclude that the court‘s interventions were not only plainly erroneous but also “so prejudicial as to deny the defendant[] an opportunity for a fair and impartial trial,” thus affecting Lefsih‘s “substantial rights.” See id. at 238 (internal quotation marks omitted). And because the error here is of the kind that may seriously affect the “fairness, integrity or public reputation of judicial proceedings,” we will correct it by vacating Lefsih‘s conviction. See Olano, 507 U.S. at 736, 113 S.Ct. 1770 (describing circumstances under which court of appeals may exercise discretion to correct a plain error affecting substantial rights).
IV.
For the foregoing reasons, we vacate the judgment of conviction and remand for proceedings consistent with this opinion.
VACATED AND REMANDED
v.
Mark Stephen BREWER; Warren Albert Garrison; James F Holland; Sidney Hugh Rhodes, Defendants-Appellants,
and
Rodney B. Smith, Defendant-Appellant,
and
Mendell W. Smith; Otella Irene Webb; Jerome Bryant; Joseph Alexander Bellamy; Kelvin L. Galloway; David W. Allen; Michael Lynn Bass; Harold E. Corbett; William Lacey Nelson; Jimmie Ray Sellers; Rodney B. Smith, Defendants.
No. 16-1574, No. 16-1575
United States Court of Appeals, Fourth Circuit.
Argued: May 10, 2017
Decided: August 14, 2017
ARGUED: Thomas S. Babel, WARD & SMITH, PA, Wilmington, North Carolina; William Cory Reiss, SHIPMAN & WRIGHT, LLP, Wilmington, North Carolina, for Appellants. William J. Delany, MORGAN, LEWIS & BOCKIUS, LLP, Washington, D.C., for Appellees. ON
Affirmed in part, vacated in part, and remanded by published opinion. Judge Agee wrote the opinion in which Judge Motz and Judge Diaz joined.
AGEE, Circuit Judge:
The complaint in this case, brought under the Employee Retirement Income Security Act of 1974 (“ERISA“),
I.
A.
ERISA contemplates two basic types of pension plans: defined contribution plans and defined benefit plans. This case involves a defined benefit plan, in which the retirement benefit is calculated as a certain annual amount that the plan pays during the employee‘s lifetime, beginning at the employee‘s retirement. See
In addition to the traditional monthly annuity benefits, employers may offer participants the option to elect a lump sum. Under ERISA and the Internal Revenue Code, employers that offer defined benefit pension plans providing early retirement annuity benefits maintain latitude in deter
B.
DAK announced plans to close its Cape Fear, North Carolina, plant in June 2013. The following month, DAK voted to amend the Plan by adding a new benefit option: an unsubsidized lump sum early retirement benefit available to certain of the Plan participants who were separating from service with DAK due to the plant closure. The lump sum would be available in addition to other payment options under the Plan. To implement this additional benefit option, Plan Amendment Number One (the “Amendment“) was adopted, which provides, in part:
4.15. Special Immediate Payment for Certain Participants: Each Participant in the group of Participants at the Employer‘s Cape Fear site who is severed from service with the Employer as a result of closing the Employer‘s plant at the Cape Fear site on or about September 1, 2013 (a “Cape Fear Participant“) shall, subject to the spouse consent requirements of Section 4.10(c)(2), have the option to elect to receive an immediate lump sum distribution within 60 days following such severance from service. Such lump sum shall be Actuarially Equivalent to the Cape Fear Participant‘s Accrued Benefit and shall not be available if the Cape Fear Participant does not elect it within such time period. Any such Cape Fear Participant who has not yet reached his Early Retire
ment Age also shall have the option to receive an actuarially equivalent ... immediate annuity payable in the form of a Qualified Joint and Survivor Annuity or a Joint and Survivor Annuity....
J.A. 54 (emphasis added). In voting to adopt the Amendment, the only item considered was a calculation offering a one-time unsubsidized lump sum based on a participant‘s Accrued Benefit at Normal Retirement Date.
Unless otherwise specifically stated in the Amendment, the terms defined in the Plan govern the Amendment. See United McGill Corp. v. Stinnett, 154 F.3d 168, 173 (4th Cir. 1998) (“[W]e are bound to enforce the contractual provisions as drafted.“). For instance, the Plan defines “Accrued Benefit” as “[t]hat portion, at any given date, of a Participant‘s Normal Retirement Benefit that has accrued at such date.”2 J.A. 63 (emphasis added). And a participant‘s “Normal Retirement Benefit” is “[t]he benefit payable at the Normal Retirement Date, as described in Section 4.1.” J.A. 77. In turn, Section 4.1 describes the Normal Retirement Benefit available under the Plan, including who is eligible for the Normal Retirement Benefit, how that benefit is calculated, and the form in which it is to be paid (a monthly life annuity). A Plan participant‘s Normal Retirement Date corresponds with “[t]he first day of the month coinciding with or next following a Participant‘s Normal Retirement Age.” J.A. 77.
The Plan also offers an Early Retirement Benefit option, described in Section 4.3 of the Plan as “payable at a participant‘s Early Retirement Date.” J.A. 68. “Early Retirement Date” is defined as “[t]he first day of any calendar month after a Participant‘s Early Retirement Age and before his Normal Retirement Age on which the Participant elects to begin receiving Early Retirement Benefits.” J.A. 68. Participants who meet certain age and years of service requirements may elect an Early Retirement Benefit (in lieu of waiting for the Normal Retirement Benefit) in the form of a monthly annuity “reduced based on the Participant‘s age when benefits begin and Years of Service” under the Plan. J.A. 94.
On September 30, 2013, the Plaintiffs sent a letter (“September 30 Letter“) to eligible Plan participants informing them of the Amendment‘s lump sum benefit option in addition to the existing Early Retirement and Normal Retirement annuities. That letter summarized the lump sum amount available under the Amendment, but the amount stated was incorrectly calculated. Transamerica had calculated the lump sum payment based on the actuarial equivalent at the Early Retirement Date for the Plan participants, not the Normal Retirement Date. Acting on this information in the September 30 letter, some plan participants made an election to receive the lump sum in lieu of either the Early Retirement or Normal Retirement annuities. Due to the calculation error, the Defendants received more generous lump sum payments than those to which they were entitled.
The Defendants were notified of the error two months after the initial, incorrect lump sum calculations and less than a month and a half after receiving the incorrect lump sum distributions. In a letter dated December 5, 2013 (the “December 5 Letter“), the Plaintiffs notified the Defendants there had been a calculation error and provided the correct amount for the lump sum that should have been paid under the Amendment. The December 5 Letter also included a revised election package so that Plan participants could elect
The Defendants were again advised of their individual corrected lump sum benefit amounts and given a second election opportunity in a letter dated December 16, 2013 (the “December 16 Letter“). This letter provided a 60-day window to make anew their retirement benefits election. Attached to that letter was a Calculation Worksheet that explained in detail the two lump sum calculations and the reason for the erroneous initial calculation.
Collectively, the Defendants received lump sums totaling $2.6 million, which included $928,000 in alleged overpayments. Most of the Plan participants affected by the lump sum calculation error either returned the entire lump sum payment and elected an annuity option benefit during the second 60-day election window or simply returned the amount of the stated overpayment. Although each of the Defendants had the second election opportunity while possessing the correct information regarding the lump sum amount and the adverse tax consequences of failing to return the funds promptly, the Defendants did not remit the disputed funds or make an alternate election.
C.
In view of the Defendants’ failure to timely remit the disputed payments, the Plaintiffs filed suit in the United States District Court for the Eastern District of North Carolina, asserting an equitable restitution claim under
The Plaintiffs moved for summary judgment on both their claim for equitable restitution and the Defendants’ counterclaims, contending they had established the required elements of an equitable restitution cause of action under ERISA that the alleged overpayments belonged in good conscience to the Plan. According to the Plaintiffs, the Plan‘s plain language provided for lump sum calculations using only the Normal Retirement Date, not the Early Retirement Date. The Defendants cross-moved for summary judgment on the equitable restitution claim, positing that the Amendment should be read to provide a lump sum calculation based on the Early Retirement Date. Defendant Smith asserted an additional argument supporting his entitlement to a surcharge remedy, claiming that, unlike the other Defendants, he forewent a job opportunity at another DAK facility in reliance on the erroneous calculation of his lump sum retirement benefit that he had elected to receive.
The district court granted the Plaintiffs’ motion for summary judgment and denied the Defendants’ cross-motions, including defendant Smith‘s separate motion, concluding that the Plan‘s plain language did not authorize the purported overpayments to any of the Defendants. The district
Defendants timely noted their appeal, and this Court has jurisdiction pursuant to
II.
Insomuch as ERISA plans are contracts, summary judgment is appropriate provided there is no ambiguity in the contract or plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (ERISA was enacted “to protect contractually defined benefits“). “[A]s a general proposition, ERISA plans, as contractual documents, see Wheeler v. Dynamic Eng‘g, Inc., 62 F.3d 634, 638 (4th Cir. 1995), are interpreted de novo by the courts.” Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 340 (4th Cir. 2000).
Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III.
The Plaintiffs asserted an equitable restitution claim in the district court for return of the disputed funds, which they alleged were erroneously paid contrary to the terms of the Plan. ERISA authorizes civil actions “by a participant, beneficiary, or fiduciary ... to obtain ... appropriate equitable relief ... to enforce any provisions of this subchapter or the terms of the plan.”
The Defendants do not dispute that the alleged overpayments are specifically identifiable funds and within their possession and control.4 The only element of the equitable restitution cause of action in dispute is whether the disputed funds belong in good conscience to the Plan. The Plaintiffs contend the plain language of the Plan authorized only a lump sum benefit calculation based on each participant‘s Normal
Every defined benefit plan, like the Plan, is required by ERISA to offer as the standard and default benefit an unsubsidized Normal Retirement Benefit in the form of an annuity. See
This Court applies the federal common law of contracts to interpret ERISA plans. See Bruch, 489 U.S. at 110; Wheeler, 62 F.3d at 638. ERISA requires that all employee benefit plans “be established and maintained pursuant to a written instrument,”
Guided by these precepts, we first consider the plain language of the Amendment and the Plan. The Amendment provides a lump sum benefit option that is “Actuarially Equivalent to the Cape Fear Participant‘s Accrued Benefit.” J.A. 54. The Plan defines “Accrued Benefit” as the “portion, at any given date, of a Participant‘s Normal Retirement Benefit that has accrued at such date.” J.A. 63. “Normal Retirement Benefit,” in turn, is “[t]he benefit payable at Normal Retirement Date,” which is, “[t]he first day of the month coinciding with or next following a Participant‘s Normal Retirement Age.” J.A. 77; see also J.A. 91-92.
On its face, the Amendment offered the Plan participants the right to elect, should they so choose, a lump sum in the actuarially equivalent amount of the benefit (an annuity) payable at his or her Normal Retirement Date. But those Plan participants, like the Defendants, who elected to receive the lump sum benefit instead of the annuity otherwise payable under the Plan, instead received a payment calculated by determining the actuarial equivalent of an
The Defendants contend the Amendment should be read to provide a lump sum benefit calculated using their Early Retirement Benefit under the Plan. They are mistaken.
The Plan explicitly provides that calculation of the lump sum payment must be based upon the Plan participant‘s Normal Retirement Benefit, which operates from an entirely separate provision under the Plan than the Early Retirement Benefit. Nothing in the Amendment alters the Plan definitions of the Early Retirement Benefit, Accrued Benefit, Normal Retirement Benefit, or Normal Retirement Date. All the Amendment did was add an optional form of payment, but it did nothing to alter the definitional terms of the Plan by which that optional form would be calculated.
The district court correctly applied the plain language of the Plan in determining the Plan authorized only calculating the lump sum as referenced in the December 5 letter based on the Normal Retirement Benefit at the Normal Retirement Date. To adopt the Defendants’ suggestion would require us to rewrite the Plan by substituting “Early Retirement Benefit” for “Normal Retirement Benefit” in the definition of Accrued Benefit. This we cannot do. United McGill Corp., 154 F.3d at 172 (“[O]ne of the primary functions of ERISA is to ensure the integrity of written, bargained-for benefit plans. To satisfy this objective, the plain language of an ERISA plan must be enforced in accordance with its literal and natural meaning.” (internal citation and quotation marks omitted)). Consequently, the surfeit of funds constituted overpayments that in good conscience belong to the Plan.
Having thus established all three elements of an equitable restitution claim as a matter of law, the Plaintiffs were entitled to summary judgment absent proof by the Defendants of some defense as a bar or offset. The Defendants fail in that endeavor.
They first argue the unsubsidized lump sum—a lump sum calculated under the Amendment using the Normal Retirement Date—deprived them of an early retirement subsidy in violation of
Here, neither the Plan, nor the Amendment, reduced or eliminated any benefit
The applicable Treasury Regulations confirm the principle that ERISA plans may opt to subsidize early retirement benefits in the form of an annuity, but not when taken in other forms. The Plan complied with the Regulations. For instance,
Accrued benefit. For purposes of this section, an accrued benefit is valued taking into consideration the particular optional form in which the benefit is to be distributed. The value of an accrued benefit is the present value of the benefit in the distribution form determined under the plan. For example, a plan that provides a subsidized early retirement annuity benefit may specify that the optional single sum distribution form of benefit available at early retirement age is the present value of the subsidized early retirement annuity benefit. In this case, the subsidized early retirement annuity benefit must be used to apply the valuation requirements of this section and the resulting amount of the single sum distribution. However, if a plan that provides a subsidized early retirement annuity benefit specifies that the single sum distribution benefit available at early retirement age is the present value of the normal retirement annuity benefit, then the normal retirement annuity benefit is used to apply the valuation requirements of this section and the resulting amount of the single sum distribution available at early retirement age.
See also Accrued Benefit, Cash-Out Rules, 53 Fed. Reg. 31837-03 (Aug. 22, 1988), preamble to
The Defendants also posit that the district court erroneously read language into the Plan. They argue that “[t]he District Court interpreted this language [from the Amendment] as though it read: Actuarially Equivalent to the Cape Fear Participant‘s Normal Retirement Benefit” rather than his or her “Accrued Benefit.” Opening Br. 21. This, they assert, contradicts the language from the Amendment that provides a calculation of the lump sum based on the Cape Fear Participant‘s Accrued Benefit. We disagree.
The district court‘s application of the written language of the Plan is confirmed by the various other statutes and regulations that define “accrued benefit” as commencing at normal retirement age. ERISA, for instance, defines “accrued benefit” as an individual‘s “accrued benefit determined under the plan ... expressed in the form of an annual benefit commencing at normal retirement age.”
What these provisions mean in less technical language is that: (1) the accrued benefit under a defined benefit plan must be valued in terms of the annuity that it will yield at normal retirement age; and (2) if the benefit is paid at any other time (e.g., on termination rather than retirement) or in any other form (e.g., a lump sum distribution, instead of annuity) it must be worth at least as much as that annuity.
The Defendants also suggest that the use of the word “immediate” in the Amendment means the lump sum must be calculated based on an Early Retirement Benefit. This contention lacks contextual awareness and contradicts the plain language of the Plan‘s defined terms. The Amendment offers Plan participants the option to receive “an immediate lump sum
Lastly, we reject Defendants’ speculative assertions of fraud on the part of the Plaintiffs. Defendants point to no record evidence to support this narrative, and there is ample record evidence demonstrating the overstated lump sums calculations in the September 30 Letter were the result of an honest mistake. As noted previously, to the extent the Defendants suggest that plan administrators must live with the consequences of errant calculations in all circumstances, the Supreme Court has specifically rejected such a position. See, e.g., Conkright v. Frommert, 559 U.S. 506, 513, 130 S.Ct. 1640, 176 L.Ed.2d 469 (2010) (rejecting a “‘one-strike-and-you‘re-out’ approach” “where the administrator has previously construed the same plan terms and [the court] found such a construction to have violated ERISA“). Indeed, once the Plaintiffs determined that the lump sum amount had been miscalculated, they were not simply entitled to, but had a fiduciary obligation to, take action to correct the mistake by recovering the erroneous payments as Plan assets. See
The written language of the Plan clearly and unambiguously provides the lump sum elected by the Defendants was the actuarial equivalent of the Accrued Benefit payable at the employee‘s Normal Retirement Date. The district court did not err in so holding and awarding summary judgment to the Plaintiffs on their equitable restitution claim.
IV.
Notwithstanding the result compelled by the Plan‘s plain language, the Defendants contend the Plaintiffs are estopped from recouping the overpaid funds based on the doctrine of equitable estoppel. In support of this view, they recycle their interpretation of the Plan‘s language and suggest the Plaintiffs, in correcting the lump sum calculations, were attempting to alter the terms of the Plan. This contention is a nonstarter.
ERISA‘s requirements for altering the terms of an employee-benefit plan are not to be discarded lightly, even in the face of otherwise applicable equitable principles. See
Our holding in Coleman corresponds with cases from the Supreme Court and our sister circuit courts of appeals, which have recognized this limitation to equitable estoppel in the ERISA context. See, e.g., US Airways, Inc. v. McCutchen, 569 U.S. 88, 133 S.Ct. 1537, 1547-48, 185 L.Ed.2d 654 (2013) (holding equitable principles cannot override clear plan terms); Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 945, 956 (9th Cir. 2014) (“[A] plaintiff may not bring an equitable estoppel claim that would result in a payment of benefits that would be inconsistent with the written plan, or would, as a practical matter, result in an amendment or modification of a plan....” (internal quotation marks omitted)); Livick v. Gillette Co., 524 F.3d 24, 31 (1st Cir. 2008) (same).
As discussed in detail above, the Defendants were entitled to elect the lump sum benefit provided by the Amendment: that is a lump sum calculated using the Plan participant‘s Accrued Benefit based on the Normal Retirement Benefit at the Normal Retirement Date under the Plan. The Defendants received, however, a lump sum based on their Early Retirement Benefit, which resulted in an overpayment contrary to the Plan‘s plain terms. Based on the clear precedent from this Circuit and others, the doctrine of equitable estoppel cannot be used to require the payment of benefits that conflicts with the express, written terms of the Plan. Coleman, 969 F.2d at 57 (“Courts are not at liberty to disregard the plain language of a[n ERISA] plan....“). Thus, equitable estoppel has no applicability in this case.7
V.
The Defendants urge us to hold that the district court erred in granting summary judgment in the Plaintiffs’ favor as to their counterclaim for breach of fiduciary duty and corresponding request for the remedy of surcharge. “Equity courts possess[] the power to provide relief in the form of monetary ‘compensation’ for a loss resulting from a trustee‘s breach of duty....” CIGNA Corp. v. Amara, 563 U.S. 421, 441, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011). The surcharge remedy can extend to a breach of trust committed by a fiduciary encompassing the violation of a duty imposed upon that fiduciary. Id. at 441-42, 131 S.Ct. 1866. Considering the equitable remedies available under
To be sure, just as a court of equity would not surcharge a trustee for a non-existent harm, a fiduciary can be surcharged under § 502(a)(3) only upon a showing of actual harm—proved (under the default rule for civil cases) by a preponderance of the evidence. That actual harm may sometimes consist of detrimental reliance, but it might also come from the loss of a right protected by ERISA or its trust-law antecedents. In the present case, it is not difficult to imagine how the failure to provide proper summary information, in violation of the statute, injured employees even if they did not themselves act in reliance on summary documents—which they might not themselves have seen—for they may have thought fellow employees, or informal workplace discussion, would have let them know if, say, plan changes would likely prove harmful. We doubt that Congress would have wanted to bar those employees from relief.
Id. at 444, 131 S.Ct. 1866 (internal citation omitted). The Court went on to hold that to obtain relief by surcharge, a plan participant must “show that the violation injured him or her.” Id. “Although it is not always necessary to meet the more rigorous stan
We assume, without deciding, that the particular facts of this case could establish a finding that the Plaintiffs breached their fiduciary duty and turn instead to consider whether any of the Defendants (except Smith, whom we address separately below) can establish a triable issue of fact as to “actual harm” in connection with their claims for a surcharge remedy.
Here, the Defendants assert various categories of harm allegedly resulting from DAK‘s September 30 Letter with regard to the lump sum payment option. For instance, they allude to “life altering decisions,” including “further employment” and “investment decisions,” without providing specificity as to any purported harm. J.A. 733-35. Any effect of the choices derived from the Defendants’ decision to retain the overpaid funds occurred after DAK had fully communicated the correct lump sum amount and before any alleged losses occurred. For example, Defendants contend they were subject to unwarranted income and excise taxes because of the overpayments. However, Defendants have no one to blame but themselves here as the December 5 and 16 Letters warned them of the consequences of failing to timely return the overpayments, stating:
Please be aware that there are significant negative tax consequences to you if you do not promptly repay the overpayment amount. The overpayment amount is not eligible for rollover into an IRA, and therefore the overpayment amount is subject to income taxes as well as an additional 6% excise tax if not removed from your IRA on a timely basis.
J.A. 188. Defendants cannot manufacture a surcharge remedy from the effects of their own informed choices. We therefore fail to see how these speculative and undefined claims of loss bear any causal nexus to a fiduciary breach that could warrant surcharge.
Smith is the only defendant with a viable surcharge claim for purposes of summary judgment. He contends that he relied on the erroneous lump sum calculation when he declined an offer to transfer to another DAK facility in the summer of 2013. In support of his argument, Smith posits that a senior manager at a DAK facility in South Carolina, Bryan P. Beck,8 offered him a position in the maintenance division of that facility. Beck‘s sworn statement supports Smith‘s allegation as it provides:
In the summer of 2013, I met with Rodney Smith, who was then employed at the Cape Fear facility, about one of the positions available at the Columbia, S.C., facility, and I determined that he was my top choice for that job.... I offered Rodney Smith the job if he wished to relocate to Columbia, S.C.... Had Rodney Smith accepted this offer, I would have hired him.... Rodney Smith later informed me, however, that DAK had offered him a generous retirement package, which he had decided to accept instead.
J.A. 837. Smith also offered as evidence that DAK‘s online retirement calculation tool advised that his lump sum payment would be equal to an “unreduced benefit” under the Plan. J.A. 810. Smith asserts he relied on that alleged misrepresentation when he “declined the offered job at DAK‘s South Carolina facility.” J.A. 811. This result was to his financial detriment, Smith argues, when his lump sum benefit
Had I known in August or September of 2013 that the lump sum amount would be $363,325.52, I would not have chosen to retire; I would have accepted the transfer position in South Carolina.... Despite attempting to recover funds from me, DAK never offered me the job that I declined in reliance on the original representations about the lump sum amount.... Because of the representation of DAK and Transamerica, I have foregone substantial earnings and benefits that I would have received had I accepted the transfer position in South Carolina.
J.A. 812. For its part, the Plaintiffs dispute any breach of fiduciary duty or that Beck had the authority to hire Smith. But these are issues of material disputed fact that cannot be resolved on this record for purposes of summary judgment.
While we express no view on the merits of Smith‘s claim, he has tendered evidence from which a reasonable trier of fact could find in his favor under a surcharge theory if the trier of fact found his evidence credible. Smith has demonstrated a triable issue as to whether the Plaintiffs’ actions amounted to a breach of fiduciary duty and whether he suffered actual harm by foregoing a specific employment opportunity at another DAK facility based on the Plaintiffs’ incorrect representations as to the amount of his lump sum retirement benefit.
Accordingly, we affirm the district court‘s grant of summary judgment as to all the Plaintiffs except for Smith. As to Smith, we conclude the district court erred when it determined that Smith failed to demonstrate a triable issue of fact as to surcharge. We vacate the judgment against Smith on this claim only and remand the case to the district court for further proceedings only as to Smith‘s claim seeking surcharge.9
VI.
For the reasons set forth above, the district court‘s decision is
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
M.L., a minor, BY his parents and next friends, Akiva and Shani LEIMAN; Akiva Leiman; Shani Leiman, Plaintiffs-Appellants,
v.
Dr. Jack R. SMITH, in his official capacity as Superintendent; Montgomery County Board of Education, Defendants-Appellees.