author: ROSENBAUM, Circuit Judge:

text:
    Derrick BAILEY, Plaintiff-Appellee, v. Major Tommy WHEELER, in his individual and official capacity, Defendant-Appellant.
    No. 15-11627
    United States Court of Appeals, Eleventh Circuit.
    (November 28, 2016)

      Derrick Bailey, ATLANTA, GA, pro se.
    Theodore Freeman, Benton J. Mathis, Jr., Mark Andrew Begnaud, Martin B. Heller, Freeman Mathis & Gary, LLP, Brian Richard Dempsey,- Quintarnos, Prie-to, Wood & Boyer, P.A., ATLANTA, GA, for Defendant-Appellant.
    Before ROSENBAUM and JILL PRYOR, Circuit Judges, and URSULA UNGARO, District Judge.

       The Honorable Ursula Ungaro, United States District Court for the Southern District of Florida, sitting by designation.

   ROSENBAUM, Circuit Judge:

The be-on-the-lookout advisory (“BOLO”) to all law enforcement in Douglas County, Georgia, described its subject as a “loose cannon.” “Consider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly,” the BOLO alarmingly warned and ominously instructed.

What had the subject of the BOLO done to trigger such a grave alert? Had he threatened law enforcement or the public? Had he broken any laws? Was he mentally unstable? Had he been acting at all suspiciously? No, no, no, and no.

Instead, Plaintiff-Appellee Derrick Bailey, the subject of the BOLO, had wielded the mightiest weapon of them all: the pen. An officer of the Douglasville Police Department, Bailey had filed a written complaint with his chief, reporting that other Douglasville officers and Douglas County Sheriffs Office deputies had been racially profiling minority citizens and committing other constitutional violations.

Bailey’s revelations did not go over well in Douglas County’s law-enforcement community. Indeed, several months later, Bailey found himself without a job.

But that did not silence Bailey. Instead, Bailey filed an appeal with the City of Douglasville, again reporting constitutional violations by his fellow officers. The City held a hearing on Bailey’s appeal. And the very next day, Defendant-Appellant Major Tommy Wheeler of the Douglas County Sheriffs Office issued a county-wide alert to all law-enforcement officers, picturing Bailey, warning that he was a “loose cannon” who presented a “danger to any [law-enforcement officer] in Douglas County,” and directing officers to “act accordingly.”

Bailey did not sit idly by. He sued Wheeler and others, asserting, among other causes of action, a claim under 42 U.S.C. § 1983 for violation of his First Amendment rights and a claim under Georgia law for defamation. When Wheeler sought to dismiss these claims, the district court denied his motion. We now affirm.

I.

A.

Bailey had more than seventeen years of law-enforcement experience when he joined the City of Douglasville Police Department (“Police Department”) as a police officer in March 2010. So it is not surprising that between May 2010 and June 2012, Bailey received above-average employee performance appraisals from his supervisors.

But Bailey’s time employed with the Police Department was far from perfect. On April 26, 2011, Bailey filed a written complaint with his chief, reporting that Police Department officers and Douglas County Sheriffs Office (“Sheriffs Office”) deputies were racially profiling minority citizens and committing other constitutional violations. Bailey also complained that law-enforcement officers made racially offensive comments and jokes about minorities, describing black males as “black as shoe polish wearing all black” and remarking that the City of Douglasville’s (“City”) logo was a “lynching tree.” Finally, Bailey expressed concern that he would lose his job for “making the complaints and speaking out about racial profiling and other violations.”

Although repercussions of Bailey’s complaint did not follow immediately, in the fall of 2012, Bailey’s supervisors ordered Bailey to rewrite incident reports that he had previously filed, and they conducted an investigation of Bailey. When Bailey reminded his supervisors that rewriting incident reports violated Police Department policy, he was initially placed on administrative leave with pay, then suspended for three days without pay, and then charged on November 8, 2012, ‘with conduct unbecoming an officer. Eight days later, though Bailey had no prior write-ups or reprimands on his record, Bailey was terminated from his position with the Police Department.

Two days after that, on November 18, 2012, Bailey appealed his termination to the City. In his appeal, Bailey wrote that he believed that he was fired for speaking out against profiling, other unconstitutional conduct, and racially offensive remarks made by that Police Department officers and Sheriffs Office deputies.

The City held a hearing on Bailey’s appeal on February 8, 2013. That very night, two deputies in a Sheriffs Office vehicle followed Bailey as he drove his personal car from Douglasville into the City of Atlanta. When Bailey entered his intended destination, the two deputies followed him in and stared him down.

Things did not improve for Bailey. The next day, February 9, 2013, Wheeler issued the BOLO on Bailey, displaying Bailey’s photograph, calling him a “loose cannon,” and warning law-enforcement officers to “[c]onsider this man a danger to any [law-enforcement officer] in Douglas County and act accordingly.” And for the second day in a row, law enforcement— this time vehicles from both the Sheriffs Office and the Police Department — followed Bailey as he drove his personal car.

About three weeks went by, and Bailey was permitted to return to work at the Police Department. At that time, the Police Department’s chief advised Bailey that Bailey could cancel the BOLO agaipst him by calling the Sheriffs Office.

B.

On March 25, 2013, Bailey filed this lawsuit. In the course of pretrial litigation, Bailey filed a second amended complaint. As it pertained to Wheeler, the second amended complaint alleged four causes of action, including, as relevant here, a claim that, in violation of 42 U.S.C. § 1983, Wheeler had retaliated against Bailey for exercising his First Amendment rights, and a claim that Wheeler had defamed Bailey .under Georgia law.

Wheeler moved to dismiss the counts against him, contending that Bailey had failed to state a claim and that, in any event, Wheeler was entitled to qualified immunity on the § 1983 claim and official immunity on the defamation claim. The district court denied Wheeler’s motion as it pertained to the First Amendment and defamation claims. Wheeler now appeals.

II.

We have jurisdiction to review Wheeler’s interlocutory appeal of the district court’s denial of qualified immunity and official immunity. Cummings v. DeKalb Cty., 24 F.3d 1349, 1352 (11th Cir. 1994).

We review de novo a district court’s denial of qualified immunity on a motion to dismiss. Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013). We likewise review de novo the denial of official immunity under Georgia law. Hoyt v. Cooks, 672 F.3d 972, 981 (11th Cir. 2012). In doing so, we accept as true the facts alleged in the complaint, drawing all reasonable inferences in a plaintiffs favor. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).

III.

Section 1983 of Title 42, United States Code, creates a private right of action to remedy violations of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Rehberg v. Paulk, 566 U.S. 356, 132 S.Ct. 1497, 1501, 182 L.Ed.2d 593 (2012). The cause of action is available against “[e]very person who acts under color of state law to deprive another of a constitutional right,” Id. (citation and internal quotation marks omitted). To establish a claim .under § 1983, a plaintiff must demonstrate that a person acting under color of state law deprived him of a federal right. Myers. v. Bowman, 713 F.3d 1319, 1329 (11th Cir. 2013).

But even if a plaintiff makes this showing, a defendant may seek to invoke the protections of qualified immunity. Qualified immunity shields public officials from liability for civil damages when their conduct does not violate a constitutional right that was clearly established at the time of the challenged action. City & Cty. of San Francisco v. Sheehan, — U.S. —, 135 S.Ct. 1765, 1775, 191 L.Ed.2d 856 (2015).

To be eligible for qualified immunity, a government official must first establish that he was acting within the scope of his discretionary authority when the alleged wrongful act occurred. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Here, Bailey does not dispute, that Wheeler was acting within the scope of his discretionary authority when he issued the BOLO against Bailey.

So the burden shifts to Bailey, as the plaintiff, to establish that qualified immunity does not apply. Id. To do this, Bailey must make two showings: first, he must demonstrate that Wheeler’s issuance of the-BOLO violated Bailey’s constitutionally-protected right. Second, he must show that the right was clearly established at the time that Wheeler issued the BOLO. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010). Bailey must satisfy both prongs of the analysis to overcome a defense of qualified immunity. See Grider, 618 F.3d at 1254.

A. Wheeler violated Bailey’s First Amendment rights

Bailey alleges that Wheeler issued the BOLO against him to punish Bailey for reporting law enforcement’s unconstitutional treatment of minority citizens, To state a claim for retaliation under the First Amendment, a plaintiff must demonstrate that (1) he engaged in protected speech; (2) the defendant’s conduct adversely affected the protected speech; and (3) a causal connection exists between the speech and the defendant’s retaliatory actions. See Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008); Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).

"Wheeler does not contend that Bailey failed to establish the first element —that he engaged in protected speech. Instead, "Wheeler argues that Bailey’s First Amendment claim fails under the second prong because, in "Wheeler’s view, the BOLO he issued was unlikely to deter a person of ordinary firmness from exercising his First Amendment rights. Wheeler also asserts that it fails under the third prong for two reasons: (1) Bailey did not allege that he expressed his concerns about racial profiling and other inappropriate and unconstitutional behavior by law-enforcement officers to anyone at the Sheriffs' Office, and (2) Bailey failed to aver any facts that would allow the inference that "Wheeler acted with the motive of retaliating against Bailey for exercising his First Amendment rights.

We begin with the second element — whether Wheeler’s conduct adversely affected Bailey’s protected speech. In this Circuit, we have explained that a defendant adversely affects protected speech if his alleged retaliatory conduct “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” Bennett, 423 F.3d at 1254. We use this objective standard because" it gives government officials notice of when their retaliatory actions viólate a plaintiffs First Amendment rights. Id. at 1251.

In this case, we readily conclude that "Wheeler’s BOLO “would likely deter a person .of ordinary firmness from the. exercise of First Amendment rights.” First, the BOLO described Bailey as a “loose cannon” who was a “danger to any [law-enforcement officer] in Douglas County,” "Viewed in a light most favorable to Bailey, this description, accompanied by Bailey’s photograph, created the impression that Bailey was mentally unstable and roaming Douglas County with a grudge against law-enforcement officers.- Then, after inciting law-enforcement officers to fear for their lives, the BOLO empowered these now-anxious officers to “act accordingly” upon coming into contact with Bailey.

Let’s pause for a moment to appreciate just how a reasonable law-enforcement officer may have understood that instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense— a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. See Smith v. LePage, 834 F.3d 1285, 1298 (11th Cir. 2016); see also Kidd v. Coates, 271 Ga. 33, 518 S.E.2d 124, 125 (1999). So, in other words, Wheeler’s BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force — including deadly force — against Bailey if they reasonably misconstrued a single move Bailey made— such as reaching into his pocket when confronted by law-enforcement officers— as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey’s life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.

And we find that is especially the case here, considering the environment in which Wheeler issued the BOLO. First, Bailey was an African-American law-enforcement officer who had protested civil-rights abuses by his fellow officers — the very people to whom the BOLO was distributed.

Second, Wheeler issued the BOLO on February 9, 2013. Less than a week earlier, national news outlets had reported that Christopher Dorner, a former Los Angeles police officer, had raged against law enforcement and killed, among others, the daughter of a police chief he felt had wronged him. See, e.g., “Alleged Cop-killer Details Threats to LAPD and Why He Was Driven to Violence,” http://www.cnn, com/2013/02/07/us/dorner-manifesto/ (last visited Nov. 21, 2016). So when Wheeler issued the BOLO against Bailey, the story of Dorner — a former police officer like Bailey — and Dorner’s violent turn against his former fellow officers, was fresh in the public’s (and law enforcement’s) awareness. Wheeler’s issuance of the BOLO in this environment raised the specter that Douglas County might have its own Dor-ner in the form of Bailey and served to only amplify the urgency of the BOLO’s warning. We need not engage in conjecture to conclude that any person of ordinary firmness would be deterred from exercising his First Amendment rights under these circumstances.

That brings us to the third element of Bailey’s First Amendment claim — causation. Wheeler asserts that Bailey’s operative complaint fails to establish causation both because it includes no allegations that Bailey made his complaints to anyone at the Sheriffs Office and, in Wheeler’s view, because it contains no factual allegations that allow for the reasonable inference that Wheeler issued the BOLO in retaliation for Bailey’s comments. We disagree.

As we have explained, a court reviewing a motion to dismiss must draw all reasonable inferences from the factual allegations in a plaintiffs complaint in the plaintiffs favor. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). When we do that in this case, we find that the operative complaint sufficiently establishes the causal connection between Bailey’s complaints and Wheeler’s issuance of the BOLO.

Bailey alleges that he complained about racial profiling and other unconstitutional behavior by Douglas County law-enforcement officers to his chief and again in his termination appeal. He further asserts that on the very day of the hearing on his termination appeal, of all days, Sheriffs Office deputies followed him as he drove to and then entered- an establishment, and they stared him down. And the next day, the complaint continues, both a Police Department vehicle and a Sheriffs Office vehicle-followed Bailey as he drove his personal car. Also on that same day, the complaint avers, Wheeler issued the BOLO, describing Bailey as a “loose cannon,” a term that; in addition to being employed to refer to a mentally unstable person, can be used to refer to “a person who cannot be controlled and who ... says things that cause problems, embarrassment, etc., for others.” Loose cannon, Merriam-Webster Online Dictionary, http://www.merriam-webster.com/ dictionary/loose% 20cannon, at “Simple Definition of LOOSE CANNON” (last visited Nov. 21, 2016) (emphasis added); see also Loose cannon, The American Heritage Dictionary (5th ed. 2011) (“One that is uncontrolled and therefore poses danger: ‘[His] bloopers in the White House seem to make him ... a political loose cannon’ (Tom Morgenthau).”).’ Finally, Bailey contends that when he returned to work a few weeks later, his chief informed him that Bailey could have the BOLO canceled by contacting the Sheriffs Office.

Viewed in the light most favorable to Bailey, these allegations allow for the reasonable inferences that the Police Department communicated with the Sheriffs Department about Bailey’s complaints prior to Wheeler’s issuance of the BOLO, that the Sheriffs Office and Wheeler knew about the termination-appeal hearing, and that Wbeeler issued the BOLO at least in part in retaliation for Bailey’s complaints. As it pertains to the communications among law enforcement about Bailey’s complaints, the timing of the Sheriffs Office’s employees’ following of Bailey and the issuance of the BOLO, the use of the term “loose cannon” in the BOLO, and the fact that Bailey’s chief instructed him that Bailey could have the BOLO canceled by calling the Sheriffs Office all support this reasonable inference. Similarly, all of these allegations other than those relating to Bailey’s having been followed can reasonably be read to support the inference that Wheeler knew about the termination-appeal hearing and that he issued the BOLO in retaliation for Bailey’s reports that local law-enforcement officers had engaged in civil-rights abuses of minority citizens. For these reasons, we conclude that Bailey sufficiently alleged that Wheeler violated Bailey’s First Amendment rights when he issued the BOLO.

B. Bailey’s constitutional right to be free from retaliation that imperiled his life was clearly established at the time that Wheeler issued the BOLO

We next consider whether Bailey’s right to be free from retaliation in the form of the particular BOLO Wheeler issued in this case was clearly established. We find that it was.

A right is clearly established if a reasonable official would understand that his conduct violates that right. See Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc). Whether the official had “fair warning” and notice that his conduct violated the constitutional right in question drives our inquiry. Id. at 1013, 1015; McClish v. Nugent, 483 F.3d 1231, 1248 (11th Cir. 2007). In determining whether the law clearly establishes a right, we look to the binding precedent set forth in the decisions of the Supreme Court, the Eleventh Circuit, or the highest court of the state (Georgia,- here), Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1184 (11th Cir. 2009), and we conduct our inquiry “in light of the specific context of the case, not as a broad general proposition,” Lee, 284 F.3d at 1194.

We have said that a plaintiff may show that “the contours of the right were clearly established in [one of three] ways.” Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012) (citation and internal quotation marks omitted). First, a plaintiff may identify a materially similar case from relevant precedent. Id. When a plaintiff proceeds in this way, we consider “whether the factual scenario that the official faced is fairly distinguishable from the circumstances facing a government official in a previous case.” Id. (citation and internal quotation marks omitted).

Second, a plaintiff may rely on a “broader, clearly established pi-inciple [that] should control the novel facts [of the] situation.” Id. at 1204-05 (citation and internal quotation marks omitted). We have explained that when a plaintiff proceeds in this way, he must show that case law established the principle with “obvious clarity ... so that every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted.” Id. at 1205 (citation and internal quotation marks omitted). This category also applies when “[t]he reasoning, though not the holding of prior cases ,., send[s] the same message to reasonable officers in novel factual situations.” Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (citation and internal quotation marks omitted).

Finally, a plaintiff may satisfy the “clearly established” requirement when the defendant’s conduct “lies so obviously at the very core of what the [First Amendment] prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of case law.” Loftus, 690 F.3d at 1205 (citation and internal quotation marks omitted). Similarly, we recognize the obvious-clarity exception where conduct is “so bad that case law is not needed to establish that the conduct cannot be lawful.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002).

Here, the reasoning of Bennett and the broad principle it establishes should have put Wheeler on notice that he could not potentially endanger Bailey’s life in retaliation for Bailey’s exercise of his First Amendment rights. But even if it did not, we think the conduct alleged in this case is so egregious that Wheeler did not need case law to know what he allegedly did was unlawful.

In Bennett, the defendant sheriff and his co-defendants allegedly used their law-enforcement positions to harass and retaliate against the plaintiffs after the plaintiffs supported a county referendum that the sheriff opposed. 423 F.3d at 1248. More specifically, the defendants followed, pulled over, cited, intimidated, and otherwise harassed the plaintiffs. Id. at 1254. In addition, they accessed confidential government databases containing information on the plaintiffs, attempted to obtain arrest warrants against the plaintiffs without probable cause, and distributed flyers that called the plaintiffs the “real criminals,” members of a “chain gang,” and “the same type of criminals that terrorize Forsyth County.” Id. at 1249. We determined thát this conduct “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.” Id. at 1254.

In reaching this conclusion, we emphasized Judge Posner’s statement that “[t]he effect on freedom of speech may be small, but since there is no justification for harassing people for exercising, their constitutional rights it need not be great in order to be. actionable.” Id. at 1254 (citation and internal quotation marks omitted). And we cited with approval cases from other circuits that concluded law-enforcement officers had violated plaintiffs’ First Amendment rights by committing “similar or less harassing [retaliatory] acts.” Id. at 1255.

For example, we cited Garcia v. City of Trenton, 348 F.3d 726 (8th Cir. 2003), which we described as holding that “the retaliatory issuance of parking tickets totaling $35 created a jury issue because the defendant ‘engaged the punitive machinery of government in order to punish Ms. Garcia for her speaking out.’” Bennett, 423 F.3d at 1255, We similarly relied on Batt v. Telford, 677 F.2d 622 (7th Cir. 1982), which we summarized as holding that a “‘campaign,of petty harassments’ against the plaintiff[,] including ‘[h]olding her up to ridicule for bringing a birthday cake to the office’ stated a cause of action for retaliation.”

If a law-enforcement officer may not issue $35 in. parking tickets or use his position to harass and intimidate individuals in retaliation for exercising their First Amendment rights, a law-enforcement officer certainly may not use his position to potentially seriously endanger a person’s life in retaliation for exercising First Amendment rights. We think that is obvious under the ease law.

But even if it were not, it is certainly obvious, as a general proposition and without reference to case law, that issuing the BOLO Wheeler issued in this case, under the circumstances that existed at the time, allegedly in retaliation for Bailey’s speaking up about alleged civil-rights abuses, clearly violated Bailey’s First Amendment rights. Law-enforcement officers are sworn to protect and defend the lives of others. It is completely .antithetical to those sworn duties for a law-enforcement officer to use his' position to harness the power of an entire county’s law-enforcement force to teach a lesson to — and potentially very seriously endanger — someone who had -the temerity to speak up about alleged abuses.

For these reasons, we agree with the district court’s assessment that the operative complaint sufficiently alleges that Wheeler violated Bailey’s clearly established constitutional right. So we affirm the district court’s denial of Wheeler’s motion to dismiss the § 1983 claim.

IV.

Wheeler next argues that the district court erred in denying him official immunity on Bailey’s state-law defamation claim. In Georgia, county law-enforcement officers like Wheeler generally enjoy official immunity from suits alleging personal liability in tort for performance of -official functions. See Eshleman v. Key, 297 Ga. 364, 774 S.E.2d 96, 98 (2015); see also Ga. Const. art. 1, § 2, para. IX(d). Under this immunity, a state official may not-be held liable for injuries caused through his per formance of discretionary functions unless he acts-‘■‘with actual-malice or with actual intent to cause injury.” Ga. Const. art. I, § 2, para. IX(d); Brown v. Penland Constr. Co. Inc., 281 Ga. 625, 641 S.E.2d 522, 523 (2007). Here, Bailey contends that Wheeler acted with actual malice in issuing the BOLO, and Wheeler responds that the complaint does not allege sufficient facts to reasonably infer actual malice.

In the context of Georgia’s official immunity doctrine, “‘actual malice’ requires a deliberate intention to do wrong.” Merrow v. Hawkins, 266 Ga. 390, 467 S.E.2d 336, 337 (1996). It “does not include ‘implied malice,’ ie., the reckless disregard for the rights or safety of others.” Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54, 60 (2007). Instead, actual malice requires more than “harboring bad feelings” or “ill will” about another; “rather, ill will must also be combined with the intent to do something wrongful or illegal.” Adams v. Hazelwood, 271 Ga. 414, 520 S.E.2d 896, 898 (1999). To overcome official immunity, a plaintiffs allegations must demonstrate that the defendant deliberately intended “to cause the harm suffered by the plaintiff[ ]”; it is not enough that the defendant merely intended to do the act purportedly resulting in the claimed injury. Murphy, 647 S.E.2d at 60; see West v. Davis, 767 F.3d 1063, 1073 (11th Cir. 2014) (quoting Kidd v. Coates, 271 Ga. 33, 518 S.E.2d 124, 125 (1999)); cf. Reed v. DeKalb Cty., 264 Ga.App. 83, 589 S.E.2d 584, 588 (2003) (observing that a plaintiff bears the burden of overcoming official immunity).

We have already explained how, viewed in the light most favorable to Bailey, Bailey’s allegations create the reasonable inference that Wheeler issued the BOLO to retaliate against Bailey for reporting that Douglas County law-enforcement officers were racially profiling minority citizens and otherwise violating their constitutional rights. Since Bailey’s allegations suffice to create this reasonable inference, they necessarily are enough in the context of this case to establish the reasonable inference that Wheeler acted with actual malice in issuing the BOLO. After all, the BOLO Wheeler allegedly issued was enough to cause the harm of deterring a person of ordinary firmness from exercising his First Amendment rights, and it had the potential to result in serious harm or even death to Bailey — facts that Wheeler must have known at the time that he issued the BOLO for the purpose of allegedly retaliating against Bailey. These allegations satisfy the showing of a deliberate intention to do wrong — that is, actual malice.

So we affirm the district court’s denial of official immunity to Wheeler on Bailey’s state-law defamation claim.

V.

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.” President Harry S. Truman, Special Message to the Congress on the Internal Security of the United States (Aug. 8, 1950). Our First Amendment demands that a law-enforcement officer may not use his powerful post to chill or punish speech he does not like. If he does so, he may not hide behind the veil of qualified immunity. We affirm the district court’s denial of Wheeler’s motion to dismiss Bailey’s § 1983 and state-law defamation claims.

AFFIRMED.

      . "The pen is mightier than the sword.” Edward Bulwer-Lytton, Richelieu; Or, the Conspiracy, act 2, sc. 2 (1839).

      . Bailey uses the term "minority citizens” to describe the individuals against whom law enforcement was committing constitutional violations. We adopt his terminology for purposes of this opinion.

      . On a motion to dismiss, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Randall v. Scott, 610 F.3d 701, 704 (11th Cir. 2010). For this reason, we take our factual recitation from Bailey’s operative complaint.

      . The seal of the City of Douglasville appears below:

      http://www.ci.dougleisville.ga.us/ (last visited Nov. 21, 2016).

      .The U.S. Department of Justice Office of Community Oriented Policing Services, in conjunction with the International Association of Chiefs of Police, has defined "conduct unbecoming” as "[a] term of administration regarding misconduct by law enforcement officers that usually applies to distasteful and undesirable conduct that is not clearly criminal or corrupt.” U.S. Dep’t of Justice & Int’l Ass’n of Chiefs of Police, An Internal Affairs Promising Practices Guide for Local Law Enforcement, at 42, http://www.theiacp.org/ portals/O/pdfs/buildingtrust.pdf (last visited Nov. 21, 2016).

      . Bailey also sued the City and other officers and deputies. Ultimately, however, Bailey voluntarily dismissed the claims against them with prejudice, pursuant to an agreement among those parties.

      . As it related to other claims against Wheeler, the district court granted Wheeler’s motion to dismiss. Bailey did not cross-appeal, so we do not discuss those claims here.

      . We agree with Wheeler’s implicit concession that Bailey alleged sufficient facts to show that, he engaged in protected speech when he complained to his chief, and again in his termination appeal, that Douglas County law-enforcement officers were involved in racial profiling and other inappropriate and unconstitutional conduct. The Supreme Court has emphasized that public employees do not forfeit all their First Amendment rights - by simple virtue of their public employment. Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Id. at 419, 126 S.Ct. 1951, Clearly, if officers are systematically violating minority citizens’ constitutional rights, that is a matter of public concern. Nor does it matter that Bailey expressed concerns related to law enforcement when he was an officer or that he did so to his chief, instead of publicly. See id. at 420-21, 126 S.Ct. 1951. Indeed, law-enforcement officers are "members of a community most likely to have informed and definite opinions” on appropriate law-enforcement conduct. See id. (citation and internal quotation marks omitted). For this reason, “it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” Id. (citation and internal quotation, marks omitted). Rather, the "controlling factor” is whether the public employee made his expressions pursuant to his specific job duties. Id. If he did not, he engaged in protected speech. Here, nothing in the record demonstrates that one of Bailey’s duties as, a police .officer was to report unconstitutional conduct by not only Police Department officers but also Sheriff's Office deputies.

      . See Loose cannon, Merriam-Webster Online Dictionary, http ://www. merriamwebster. com/ dictionary/loose% 20cannon, at "Full Definition of LOOSE CANNON” (last visited Nov. 21, 2016); "a dangerously uncontrollable person or thing.”

      . Indeed, if tragedy had ensued and an officer had shot Bailey after reasonably misconstruing something Bailey had done, that offl-cer could have invoked the very BÜLÓ at issue to justify his entitlement to qualified immunity.


source: Caselaw Access Project

author: KAREN LeCRAFT HENDERSON, Circuit Judge:

license: Public Domain

text:
    Yueh-Lan WANG, BY AND THROUGH her attorney-in-fact, Winston Wen-Young WONG, Appellant v. NEW MIGHTY U.S. TRUST, et al., Appellees
    No. 12-7038
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 21, 2016
    Decided December 9, 2016
    Mark'W. Stoutenburg argued the cause for the appellant. Daniel S. Weinberger, New York, NY, was with him on brief. Steven M. Chasin, Washington, DC, entered an appearance.
    Clifford M. Sloan argued the cause for the appellees. David B. Leland, Washington, DC, John Gardiner and Andrew Mus-cato, New York, NY, were with him on brief. David E. Carney, Washington, DC, entered an appearance.
    Before: HENDERSON, KAVANAUGH and MILLETT, Circuit Judges.
   KAREN LeCRAFT HENDERSON, Circuit Judge:

This case presents the question of how to determine the citizenship of a trust for diversity subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a). In light of the United States Supreme Court’s recent decision in Americold Realty Trust v. ConAgra Foods, Inc., 577 U.S. -, 136 S.Ct. 1012, 194 L.Ed.2d 71 (2016), we conclude that a so-called “traditional trust” carries the citizenship of its trustees. We accordingly reverse the district court’s Rule 12(b)(1) dismissal and remand for further proceedings. Fed. R. Civ. P. 12(b)(1). We also grant the plaintiffs pending motion to substitute as hereinbelow discussed.

I. BACKGROUND

The facts giving rise to this lawsuit began over eighty years ago and thousands of miles away. In 1935, Yueh-Lan Wang (Yueh-Lan) — in whose name this action was brought — married Yung-Ching Wang (Y.C.). Perhaps presaging the advice given Dustin Hoffman’s eponymous character in the 1967 movie The Graduate, Y.C. went into plastics, founding the Formosa Plastics Group in Í954. He achieved tremendous success and, by the time of his death in 2008, Y.C. was ranked by Forbes magazine as the 178th' wealthiest person in the world with an estimated net worth of up to $6.8 billion. Although Y.C. remained married to Yueh-Lan over the course of his life, at the same time he had a number of children with two other women, Wang Yang Chiao and P.C. Lee. Yueh-Lan helped to rear at least one of those children, Winston Wen-Young Wong (Winston), whose biological mother was Wang Yang Chiao. According to her will, Yueh-Lan considered Winston her son.

Y.C. died on October 15, 2008. Three years earlier, however, allegedly in an effort to reduce Yueh-Lan’s share of the marital estate, Y.C. made various distributions and stock transfers to, inter alia, the New Mighty U.S. Trust (New Mighty), a trust formed under the laws of the District of Columbia to hold certain of Y.C.’s assets. In an effort to account for and recover Yueh-Lan’s share of the marital estate, Winston — a citizen of Taiwan and allegedly acting as Yueh-Lan’s attorney-in-fact— brought suit in October 2010 against New Mighty, along with its trustee, Clear-bridge, LLC, and the New Mighty Foundation, one of New- Mighty’s beneficiaries. Up to now, the; case has had little to do with the legitimacy of Y.C.’s pre-2008 distributions. ■

In July 2011, the defendants moved to dismiss -the complaint on a variety of grounds, including lack of diversity. The district court concluded that a traditional trust (like New Mighty) is an artificial entity that “assumes the citizenship of all of its ‘members’ for purposes of diversity jurisdiction.” Wang ex rel. Wong v. New Mighty U.S. Tr., 841 F.Supp.2d 198, 205 (D.D.C. 2012). Reasoning that New Mighty’s “members” must include its beneficiaries, the court held that, because the amended complaint lacked allegations sufficient to establish the citizenship of at least some beneficiaries, subject-matter jurisdiction could not be determined. Id. at 206-07. Accordingly, the court instructed the defendants to produce a list of all beneficiaries and their citizenship. Id. at 208. The list revealed that New Mighty’s beneficiaries included several entities that were citizens of the British Virgin Islands. As a result, complete diversity did not exist: defendant Clearbridge was a citizen of Virginia and the District of Columbia; defendant New Mighty Foundation was a citizen of Delaware and the District of Columbia and defendant New Mighty was then deemed a citizen of Delaware, the District of Columbia and the British Virgin Islands. With both an alien plaintiff and at least one alien defendant, the distinct court found diversity lacking. Winston sought reconsideration, arguing that the defendants had to show that the beneficiaries in fact received a distribution to qualify as beneficiaries under the trust and, therefore, their citizenship was irrelevant without such showing. In April 2012, the district court denied reconsideration. This appeal followéd.

Shortly after the notice of appeal was filed, however, Yueh-Lan died. The appeal was held in abeyance and, consistent with this Court’s instructions, Winston filed a series of reports on the status of legal proceedings underway in Taiwan to appoint an executor of Yueh-Lan’s will. Eventually, three- persons — Chen-Teh Shu, Dong-Xung Dai and Robert Shi— were designated joint executors. Winston and the executors moved to substitute' the executors as Yueh-Lan’s personal representative pursuant to Federal Rule of Appellate Procedure 43(a)(1). The defendants opposed the motion, arguing that Winston was not the proper party to have initiated the lawsuit in the first place and that it should therefore be dismissed and the substitution motion denied. Both the substitution and dismissal motions were referred to this merits panel for' disposition. The questions before us, then, are whether the district court lacked subject-matter jurisdiction and whether the pending motion to substitute should be granted.

II. ANALYSIS

A. Subject-Matter Jurisdiction

. “The judicial Power” of the United States “extend[s] ... to Controversies ... between a State, or the Citizens thereof, and foreign . . . Citizens.... ” U.S. Const. art. III, § 2, cl. 1. Although the Congress has granted the district court jurisdiction of a civil action in which “the matter in controversy exceeds ... $75,000 ... and is between ... citizens of a State and citizens or subjects of a foreign state,” 28 U.S.C. § 1332(a) (2006), that provision — which requires “complete” diversity — does not reach disputes between aliens, see Saadeh v. Farouki, 107 F.3d 52, 54-55, 61 (D.C. Cir. 1997). This lawsuit was originally brought by Winston on behalf of Yueh-Lan, a Taiwanese. Whether diversity jurisdiction exists depends, first, on correctly identifying the defendants and, then, determining their citizenship.

Supreme Court Precedent

In determining a trust’s citizenship, we were guided pre-Americold by the Supreme Court’s decisions in Navarro Savings Association v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980), and Carden v. Arkoma Associates, 494 U.S. 185, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990). Although neither case addressed the issue directly, both informed the Court’s analysis in Americold and here, too, they provide a useful point of departure.

In Navarro the question was “whether the trustees of a business trust may invoke the' diversity jurisdiction of the federal courts on the basis of their own citizenship, rather than that of the trust’s beneficial shareholders.” 446 U.S. at 458, 100 S.Ct. 1779. In that case, the plaintiffs — eight individual trustees of Fidelity Mortgage Investors (Fidelity), “a business trust organized under Massachusetts law” — had lent $850,000 to a Texas firm. Id. at. 459, 100 S.Ct. 1779. In return, the Texas firm provided a promissory note payable to the plaintiffs as trustees. Id. The note was, in turn, partially secured by a commitment letter under which Navarro Savings Association (Navarro) — the defendant — agreed to Tend the Texas firm $850,000 to cover the latter’s obligation. Id. When the plaintiff trustees asked Navarro to make the loan, Navarro refused. Id. They brought suit in federal district court, invoking its diversity jurisdiction. Id. The district court, however, found diversity lacking. Id. at 460, 100 S.Ct. 1779. In its view, the Massachusetts business trust was a citizen of every state in which its shareholders resided and, although defendant Navarro was a citizen of Texas and all eight plaintiff trustees were citizens of other states, some of Fidelity’s shareholders were citizens of Texas and therefore defeated diversity. Id. On appeal, the Fifth Circuit reversed, reasoning that the trustees — and not Fidelity’s beneficial shareholders— were “charged with the power to sue and be sued on behalf of the trust, ... the persons in actual control of the trust and the real parties in interest.” Lee v. Navarro Savs. Ass’n, 597 F.2d 421, 425 (5th Cir. 1979). The Supreme Court affirmed. Navarro, 446 U.S. at 460, 100 S.Ct. 1779. As the Court explained, the plaintiff trustees were the “real parties to the controversy,” id. at 461, 465, 100 S.Ct. 1779; “[t]hey ha[d] legal title; they manage[d] the assets; they controlled] the litigation[,]” id. at 465, 100 S.Ct. 1779.

Navarro, contended that Fidelity’s “business trust” status “mask[ed] an unincorporated association of individuals who make joint real estate investments,” id. at 461, 100 S.Ct. 1779, and, therefore, as an unincorporated association made up of a “mere collection[] of individuals,” id. citizenship of those individuals “determines the diversity jurisdiction of .a federal court,” id. Although , the Court concluded that it “need not reject the argument that Fidelity share[d] some attributes of an association,” it determined that the litigation “involve[d] neither an association nor a corporation” but instead “an express trust.” Id. at 462, 100 S.Ct. 1779.

Despite its relatively plain holding that Fidelity’s trustees — not its shareholders— were the .real parties to the controversy, Navarro could arguably be read as also laying down a rule to determine the non-party trust’s citizenship — as was subsequently attempted in Carden. In Carden, plaintiff Arkoma Associates (Arkoma), a limited partnership organized under Arizona law, sued two individual defendants who were citizens of Louisiana, invoking diversity jurisdiction. 494 U.S. at 186, 110 S.Ct. 1015. The defendants unsuccessfully moved to dismiss, claiming that one of Arkoma’s limited partners was a citizen of Louisiana. Id. The case proceeded to trial and, after Arkoma prevailed, the defendants appealed. Id. The Fifth Circuit affirmed, concluding that Arkoma’s citizenship .turned on that of its general partners alone, without regard to the citizenship of its limited partners. Id. at 187, 110 S.Ct. 1015. The Supreme Court concluded otherwise. Id. at 198, 110 S.Ct. 1015. It began by recognizing that complete diversity could exist under either of two scenarios. First, diversity could exist if a limited partnership is a “citizen” of the state that created it. Id. at 187, 110 S.Ct. 1015. Second, diversity could exist if it depended on the citizenship of the general partners only. Id. The Court rejected both. It first determined that, with one exception, the only state law-created artificial entity that can be treated as a citizen of that state under Supreme Court precedent is the corporation. Id. at 187-92, 110 S.Ct. 1015. It rejected Arkoma’s argument that Navarro prescribed a similar treatment for a trust. Id. at 191-92, 110 S.Ct. 1015. Navarro “did not involve the question whether a party that is an artificial entity other than a corporation can be considered a ‘citizen’ of a State,” the Supreme Court explained, but instead “the quite separate question whether parties that were undoubted ‘citizens’ (viz., natural persons) were the real parties to the controversy.” Id. at 191, 110 S.Ct. 1015. In then concluding that the citizenship of both the limited and the general partners of Arkoma counted, the Supreme Court rejected the notion that Navarro dealt with a trust’s citizenship. Id. at 192-96, 110 S.Ct. 1015. To the contrary, “Navarro had nothing to,do with the citizenship of the ‘trust,’.since it was a suit by the trustees in their own names.” Id. at 192-93, 110 S.Ct. 1015. The Court “adhere[d] to [its] oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of ‘all the members,’ ‘the several persons composing such association,’ ‘each of its members.’” Id. at 195-96, 110 S.Ct. 1015 (emphasis added) (citations omitted).

The holdings in Navarro and Carden are clear enough: the citizenship of a Massachusetts business trust’s trustees suing in their own names is the determinative citizenship, notwithstanding the non-party trust itself has some attributes of an unincorporated association, Navarro, 446 U.S. at 462, 465-66, 100 S.Ct. 1779; and diversity in a suit by or against an “artificial entity” created under, state law is determined by the citizenship of all of the entity’s members, Carden, 494 U.S. at 195, 110 S.Ct. 1015. Less clear is the reach of these holdings and various approaches to determining a trust’s citizenship have proliferated. See Emerald Investors Tr. v. Gaunt Parsippany Partners, 492 F.3d 192, 201-03 (3d Cir. 2007) (collecting approaches).

The .district court attempted to apply the Navarro and Carden holdings. Wang, 841 F.Supp.2d at 203-05. Although it recognized that Navarro “could arguably be read to imply that when a trustee possesses certain customary powers to hold, manage, and dispose of assets for the benefit of others, a court should refer only to the citizenship of the trustee,”- it also found significant Carden’s declaration that “ ‘Navarro had nothing to do with the citizenship of the trust[.]’” Id. at 204 (citation and some internal quotation marks omitted) (quoting, inter alia, Carden, 494 U.S. at 192-93, 110 S.Ct. 1015). Even if that language constituted dicta, the district court reasoned, Carden persuasively read Navarro to make clear that “[djetermining which parties before the court are the real parties and determining the citizenship of a given party ... are distinct questions.” Id. at 205, 110 S.Ct. 1015, Believing it faced the latter question because New Mighty was named as a party defendant, the district court turned to Carden ⅛ membership test. Id. It used Carden’s “artificial entity” language, concluded that a trust is an artificial entity and therefore thought it “clear that the Carden rule also applies to trusts.” Id.

After the district court’s decision, the Supreme Court decided Americold. Amer-icold involved a lawsuit brought by several corporations against the owner of an underground warehouse containing the corporations’ food products; the warehouse had been destroyed by Are. 136 S.Ct. at 1014. The plaintiff corporations sued in Kansas state court and the defendant warehouse owner — Americold Realty Trust (Americold), a real estate investment trust (REIT) created under Maryland law — removed the lawsuit to federal district court, which held for Americold. Id. On appeal, the Tenth Circuit sua sponte requested briefing on the district court’s diversity jurisdiction. Id, It eventually concluded that the plaintiff corporations were citizens of Delaware, Nebraska and Illinois and that Americold’s citizenship was determined, per Carden, by reference to its members, including its shareholders. Id. at 1014-15. Without record evidence of Americold’s shareholders’ citizenship, the Tenth Circuit decided that the parties had failed to demonstrate that diversity of citizenship existed, see id. at 1015, and remanded the case to the district court to vacate its judgment and remand the matter to state court, ConAgra Foods, Inc. v. Americold Logistics, LLC, 776 F.3d 1175, 1182 (10th Cir. 2015). The Supreme Court affirmed, relying on Car-den to conclude that, under Maryland law, the citizenship of a REIT included its shareholders. Americold, 136 S.Ct. at 1015-17. In so doing, however, the Supreme Court singled out for discussion Americold’s argument that, under Navarro, “anything called a Trust’ possesses the citizenship of its trustees alone, not its shareholder beneficiaries as well.” Id. at 1016, The Court first repeated its observation that “Navarro had nothing to do .with the citizenship of [a] ‘trust.’” Id. (alteration in original) (some internal quotation marks omitted) (quoting Carden, 494 U.S. at 192-93, 110 S.Ct. 1015). As the Court explained, “Navarro reaffirmed a separate rule that when a trustee files a lawsuit in her name, her jurisdictional citizenship is the State to which she belongs,” a rule that “coexists” with the proposition that “when an artificial entity is sued in its name, it takes the citizenship of each of its members.” Id. (emphases in original). The Court acknowledged, however, that “Am-ericold’s confusion regarding the citizenship of a trust is understandable, and widely shared” and posited that such “confusion can be explained, perhaps, by tradition.” Id. It elaborated:

Traditionally, a trust was not considered a distinct legal entity, but a “fiduciary relationship” between multiple people. Such a relationship was not a thing that could be haled into court; legal proceedings involving a trust were brought by or against the trustees in their own name. And when a trustee files a lawsuit or is sued in her own name, her citizenship is all that matters for diversity purposes. For a traditional trust, therefore, there is no need to determine its membership, as would be true if the trust, as an entity, were sued.
Many States, however, have applied the “trust” label to a variety of unincorporated entities that have little in common with this traditional template. Maryland, for example, treats a real estate investment trust as a “separate legal entity” that itself can sue or be sued. So long as such an entity is unincorporated, we apply our “oft-repeated rule” that it possesses the citizenship of all its members. But neither this rule nor Navarro limits an entity’s mejnbership to its trustees just because the entity happens to call itself a trust.

Id. (emphases added) (citations omitted),

With respect, the meaning of the highlighted language is not easy to ascertain. As the Fourth Circuit recently declared:

Having settled the diversity of citizenship question for real estate investment trusts, perhaps the Supreme Court in Americold intended this statement to globally resolve the issue for other trusts. However, the statement may generate as many questions as it answers. Putting aside the lack of a comprehensive definition of a “traditional trust,” the “as would be true if the trust, as an entity were sued” phrase seems open to several interpretations.
For example, does the phrase mean that there is no need to determine entity membership for diversity purposes when a “traditional trust” is sued as an entity? Or do we read the statement to mean that a trust.sued as an- entity must-prove entity membership because it- is a separate legal person -from the individual trustees?

Zoroastrian Ctr. & Darb-E-Mehr of Metro. Wash., D.C. v. Rustam Guiv Found. of N.Y., 822 F.3d 739, 749 (4th Cir. 2016). And the parties here too disagree about Americold’s meaning. According to Winston, Americold means that diversity jurisdiction ' in a suit involving a traditional trust depends only on the trustees’ citizenship. According to the defendants, Ameri-cold distinguishes not between a’ traditional trust and an entity only nominally a trust but instead between a suit in which a trust is the named party and one in which the trustees are the named parties.

Although not all courts have to date read Americold to distinguish between traditional trusts and other artificial entities, some have done so. See Juarez v. DHI Mortg. Co., No. CV H-15-3534, 2016 WL 3906296, at *2 (S.D. Tex. July 19, 2016) (“Americold provides that if the trust itself is suing or being sued, then further analysis is required to determine whether the trust is a traditional trust ... or a business entity_”); Wells Fargo Bank, N.A. v. Transcon. Realty Investors, Inc., No. 3:14-CV-3565-BN, 2016 WL 3570648, at *3 (N.D. Tex. July 1, 2016) (“The citizenship of a trust may depend on whether it is a traditional trust or what some have called a business trust.”), appeal docketed, No. 16-11167 (5th Cir. July 29, 2016); cf. Sutter Ranch Corp. v. Cabot Oil & Gas Corp., No. CIV-16-42-M, 2016 WL 3945834, at *1 (W.D. Okla. July 19, 2016) (“[T]he United States Supreme Court has recently held that the citizenship of a trust, in particular a business type trust, is the citizenship of all of its members, i.e., its beneficiaries.”).

We think Winston’s reading of Am-ericold — that is, the citizenship of a traditional trust depends only on the trustees’ citizenship — is the better one. First, Am-ericold is clear that “[m]any [s]tates ... have applied the 'trust’ label to a variety of unincorporated entities that have little in common with th[e] traditional template” for a trust. 136 S.Ct. at 1016. And Americold is equally clear that, “[s]o long as such an entity is unincorporated, [courts] apply [the] ‘oft-repeated rule’ that it possesses the citizenship of all its members.” Id. (quoting Carden, 494 U.S. at 195, 110 S.Ct. 1015). Because Americold involved an entity to which the Court applied the Carden test, see id. at 1015-16, and because, “[traditionally, a trust was not considered a distinct legal entity,” id. at 1016, we believe Americold would not apply the Carden test to a traditional trust, as it is not an entity. Second, and relatedly, the Supreme Court was clear that, “[traditionally, a trust was ... not a thing that could be haled into court.” Id. We doubt that the Supreme Court envisaged a test by which a court decides that a party that traditionally cannot be brought into court, see id. can nevertheless be “sued as an entity,” Appellees’ Br. 32 (emphasis omitted).

New Mighty Qua Traditional Trust

With these principles in mind, we must decide whether New Mighty is in fact a traditional trust. We conclude that it is. New Mighty is a creature of D.C. law. See Joint Appendix 469. As both parties recognized at oral argument, see Recording of Oral Argument at 21:20-23, 38:26-36 (Sept. 21, 2016), New Mighty is governed by Title 19 of the D.C. Code, which title includes D.C.’s version of the Uniform Trust Code (UTC), see D.C. Code §§ 19-1301.01 et seqr, compare also D.C. Code § 19-1304.01(2) (trust may be created by “[declaration by the owner of property that the owner holds identifiable property as trustee.”), with Joint Appendix 461 (“Clearbridge LLC, as Trustee^] declares a trust over one hundred U.S. dollars ($100.00).”). Although Americold did not provide a comprehensive definition of a “traditional trust,” it did consider, instructive section 2 of the Second Restatement of Trusts, 136 S.Ct. at 1016, a source to which D.C. courts have also turned, see Cabaniss v. Cabaniss, 464 A.2d 87, 91 (D.C. 1983). According to Americold as well as the Restatement, a traditional trust for diversity- generally describes a fiduciary relationship regarding property where the trust cannot sue and be sued as an entity under state law. More broadly, we conclude that a traditional trust is a trust that lacks juridical person status. Whether a particular trust has or lacks juridical person status can be determined by reference to the law of the state where the trust is formed. New Mighty is not a'juridical person. Under D.C. law, New Mighty is a donative trust governed by Title 19, chapter 13 of the D.C. Code and, thus, New Mighty cannot sue and be sued as an entity under D.C. law. See, e.g., Matijkiw v. Strauss, 139 Daily Wash. L. Rptr. 1345, 1349, 1351 (D.C. Super. Ct. July 1, 2011); I.n re Nat’l Student Mktg. Litig., 413 F.Supp. 1159, 1160 (D.D.C. 1976). It is, therefore, a traditional trust.

For their part, the defendants suggest that New Mighty’s structure makes it other than traditional, pointing to the amended complaint’s allegation that “Defendant New Mighty Trust is a trust structure that includes a trust formed- under the laws of the District of Columbia and a trust formed under the laws of the Cayman Islands pursuant to the Special Trusts Alternative Regime.” Appellees’ Br. 24-25 (emphasis and internal quotation marks omitted) (quoting Am. Compl. ¶ 60). In their view, “[wjhatever is meant by a ‘traditional trust,’ it certainly cannot include trusts formed pursuant to a foreign statutory regime that was promulgated in 1997.” Id. at 25. The allegation the defendants rely on, however, does not refer to New Mighty alone; the amended complaint uses the phrase “New Mighty Trust” to refer to all of the defendants collectively— that is, New Mighty, the New Mighty Foundation and Cléárbridge. Whether these three defendants collectively make up a “trust structure” that includes a trust formed under Cayman Islands law is not the same question as whether New Mighty itself is a traditional trust. And on the latter point, the amended complaint expressly alleges that New Mighty “is a trust formed under the laws of the District of Columbia.” Am. Compl. ¶ 14. We conclude, then, that New Mighty is a traditional trust and therefore assumes its trustees’ citizenship for diversity jurisdiction.

Having established that New Mighty is a traditional trust, we conclude complete diversity of citizenship exists. Yueh-Lan, Y.C.’s now-late widow, was a citizen of Taiwan. On the other side of the litigation, the amended complaint alleges that the New Mighty Foundation is a citizen of the District of Columbia and the State of Delaware and Clearbridge, New Mighty’s trustee, is a citizen of the Commonwealth of Virginia and the District of Columbia. Because New Mighty is a “traditional trust,” it is its trustee Clearbridge’s citizenship that is determinative. To the extent New Mighty itself is a named party to the lawsuit, it is only a nominal one, see Navarro, 446 U.S. at 461, 100 S.Ct. 1779 (“[A] federal court must disregard nominal or formal parties and. rest jurisdiction only upon the citizenship of real parties to the controversy.”).

B. Winston’s Motion to Substitute and

Dependants’ Motion to Dismiss

As noted earlier, Winston and the three joint executors of Yueh-Lan’s will moved to substitute the three executors in place of Yueh-Lan pursuant to Federal Rule of Appellate Procedure 43(a)(1). The defendants raise a host of objections in response, primarily relating to the allegedly defective power of attorney Winston exercised in bringing suit, which, in their view, should result in dismissal. It is “our usual ,.. practice” to “deelin[e] to address arguments unaddressed by the district court,” Pollack v. Hogan, 703 F.3d 117, 121 (D.C. Cir. 2012) (per curiam), and we follow that practice here — the district court should consider the defendants’ arguments in the first instance. Accordingly, we grant the substitution motion without prejudice to the . defendants’ ability to renew in district court those arguments they have pressed before us. See Appellees’ Br. 41-55; Appel-lees’ Resp. to the Mot. of Winston-Wen-Young Wong and Chen-Teh Shu, Dong-Xung Dai and Robert Shi.

For the foregoing reasons, we reverse the district court’s dismissal, grant the Rule 43(a)(1) substitution motion and deny without prejudice the defendants’ motion to dismiss. We remand for further proceedings consistent with this opinion.

So ordered.,

      . Because the district court dismissed the complaint for lack of subject-matter jurisdiction, we take the facts alleged in the amended complaint as true, see United States ex rel. Oliver v. Philip Morris USA Inc., 826 F.3d 466, 469 n.2 (D.C. Cir. 2016), and draw upon other documents as necessary, see Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016),

      . Some of the parties have the surname "Wang” or "Wong.” According to the complaint, the alternate spellings refer to the same Chinese-language surname.

      . “I just want to say one word to you. Just one word_ Are you listening?_ Plastics.”

      . The defendants refer to Wang Yang Chiao as Yang Jiao Wang. See Appellees’ Br. 2.

      . The amended complaint alleges that P.C. Lee and members of her family — without Y.C.’s knowledge — created several trusts, including New Mighty, in order to reduce Yueh-Lan’s share of the marital estate. According to the amended complaint, "the trusts resulted from the'undue influence P.C. Lee and her family exerted on Y.C.

      . Shortly after that order issued, Winston and the executors filed an emergency motion to stay briefing pending the Supreme Court's Americold decision. The Court granted the motion and held the case in abeyance, Shortly thereafter, Americold was decided and, on Winston's and the executors’ motion, the stay was lifted and a briefing schedule imposed.

      . Arkoma had both general and limited partners. Carden, 494 U.S. at 205-06, 110 S.Ct. 1015 (O'Connor, J., dissenting).

      . The one exception is Puerto Rico’s sociedad en comandita. Carden, 494 U.S. at 189-90, 110 S.Ct. 1015.

      . The district court reached this conclusion in light of the “plain meaning” of "artificial entity," Wang, 841 F.Supp.2d at 205, Carden 's distinguishing of those artificial entities to which its rule did not apply and Carden's "repeated discussion and differentiation of Navarro," id.

      . In Zoroastrian Center, a nonprofit entity sued a charitable trust in state court seeking to renew a lease the trust had allegedly terminated, 822 F.3d at 743-44. The trust removed the lawsuit to federal court and the district court granted summary judgment to the trust. Id. On appeal, the plaintiff sought remand to Virginia state court on the ground that the trust failed to establish diversity of citizenship. Id. at 747. The Fourth Circuit did not resolve the Americold question because diversity existed regardless of whose citizenship— that of the trustees, the trust beneficiaries or both — was considered. Id. at 749-50.

      . Winston participated as amicus in the. Am-ericold proceedings. Br. of Winston Wen-Young Wong as Amicus Curiae in Supp. of Pet'rs at 18, Americold Realty Tr. v. ConAgra Foods, Inc., 577 U.S, -, 136 S.Ct. 1012, 194 L.Ed.2d 71 (2016) (No. 14-1382, — U.S. —, — S.Ct. - — , — L.Ed.2d -, 2015 WL 7732607, at *18 (“[Diversity of citizenship in a suit by or against a traditional trust should be determined by the citizenship of its trustee alone_”).

      .The defendants claim that Winston waived his “traditional trust” argument. There is good reason to conclude, however, that Winston did not waive the argument; in any event, we can appropriately determine this "important[] and recurring question of federal law” resulting in part from "an intervening change.in the law.” Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992) (noting that, in such circumstances, appellate court can exercise discretion to consider issues raised-for first time on appeal).

      . Moreover, Supreme Court precedent predating Navarro, Carden and Americold considered the citizenship of a trust beneficiary immaterial in determining divérsity of citizenship. See Bullard v. City of Cisco, Tex., 290 U.S. 179, 190, 54 S.Ct. 177, 78 L.Ed. 254 (1933) ("As the transfers under which the plaintiffs held the bonds and coupons were made to them as trustees, were real ... and invested them with the full title, they were entitled, by reason of their citizenship and of the amount involved, to bring the suit in the federal court. The beneficiaries were not necessary parties and their citizenship was immaterial.”); Bonnafee v. Williams, 44 U.S. (3 How.) 574, 577, 11 L.Ed. 732 (1845) ("Where the citizenship of the parties give[s] jurisdiction, and the legal right to sue is in the plaintiff, the court will not inquire into the residence of those who may have ah equitable interest in the claim. They are not necessary parties on the record. A person having the legal right may sue, at law, in the federal courts, without reference to the citizenship of those who may have the equitable interest.”).

      . The parties do not dispute that New Mighty is not a statutory trust within the meaning of Title 29 of the D.C. Code. Enacted several years after New Mighty’s 2005 formation, see 58 D.C. Reg. 1720-21, 2157-79 (Mar. 11, 2011), D.C.’s ‘‘Uniform Statutory Trust Entity Act of 2010” — contained in Title 29— requires that, "[t]o form a statutory trust, a person shall deliver a certificate of trust to the [mjayor for filing,” see D.C. Code §§ 29-1201.01, 29-1202.01(a). The record contains no such certificate.

      .Section 2 of the Restatement provides:
      A trust, as the term is used in the Restatement of this Subject, when not qualified by the word "charitable,” "resulting” or “constructive," is a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.
      Restatement (Second) of Trusts § 2 (1959).

      . The enactment of the UTC did not replace all of D.C.’s common law of trusts. See D.C. Code § 19-1301.06 (unless modified by D.C. law, ‘‘[t]he common law of trusts and principles of equity supplement [the UTC]”).

      . The trust declaration describes New Mighty’s purpose “to hold, manage and administer interests in ... member[s] of the Formosa Plastics Group óf companies[] for the benefit of [certain entities] pursuant to the Founders [sic] Vision for the betterment of mankind.” Joint Appendix 461.

      .At oral argument, New Mighty’s counsel . posited that the District of Columbia added "significant ... variations” to the model Uniform Trust Code, making it difficult to differentiate a traditional trust from a statutory trust. He argued that, under D.C. Code § 19-1301.03(11), "[p]erson” is defined to include a trust and that, per D.C. Code § 19-1304.18, a trust can hold property. We think New Mighty’s reliance on these provisions misplaced. Other provisions of D.C. law make clear that New Mighty is a traditional trust. Compare, e.g., D.C. Code § 19-1308.09 ("A trustee shall take reasonable steps to take control of and protect the trust property.”), and D.C. Code § 19-1308.11 ("A trustee shall take reasonable steps ... to defend claims against the trust.”), with Restatement (Second) of Trusts § 175 ("The trustee is under a duty to the beneficiary to take reasonable steps to take and keep control of the trust property.”), and Restatement (Second) of Trusts § 178 ("The trustee is under a duty to the beneficiary to defend actions which may result in a loss to the trust estate, unless under all the circumstances it is reasonable not to make such defense.”).

      . All parties look to Yueh-Lan to determine citizenship on the plaintiff's side. See, e.g., Saadeh, 107 F.3d at 57 (”[D]iversity of citizenship is determined at the time the complaint is filed.”). 'Winston brought suit' as Yueh-Lan’s attorney-in-fact;, when Yueh-Lan later died, Winston and the three executors assumed the citizenship of the decedent. See 28 U.S.C. § 1332(c)(2).

      . We do not reach Winston’s alternative argument that New Mighty should be dismissed as a dispensable party pursuant to Federal Rule of Civil Procedure 21.

      . "If a party dies after a notice of appeal has béeri filed or while a proceeding is pending in the court of appeals, the decedent’s personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party.” Fed. R. App. P. 43(a)(1).

      . We note Yueh-Lan’s counsel’s acknowl-edgement at oral argument that the defendants' arguments are unaffected by our grant of the Rule 43(a)(1) motion.


author: BROWN, Circuit Judge:

text:
    BORGESS MEDICAL CENTER, A Michigan Nonprofit Corporation, and Bronson Methodist Hospital, A Michigan Nonprofit Corporation, Appellants v. Sylvia Mathews BURWELL, Secretary of the United States Department of Health and Human Services, Appellee
    No. 13-5330
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 27, 2016
    Decided December 9, 2016

      Geoffrey M. Raux, Boston, MA, argued the cause for appellants. With him on the briefs was Lori A. Rubin, Washington, DC.
    Samantha L. Chaifetz, Attorney, U.S. Department of Justice, argued the cause for appellee. On the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Michael S. Raab and Henry C. Whitaker, Attorneys.
    Before: TATEL, BROWN and KAVANAUGH, Circuit Judges.
   BROWN, Circuit Judge:

Appellants are two hospitals challenging the denial of reimbursements for the off-site training expenses of their medical residents for several cost reporting periods between 2000 and 2004 by the Secretary of the Department of Health and Human Services (“Secretary”). They argue the Secretary erroneously held they failed to comply with the Secretary’s reimbursement regulations requiring that they incur all or substantially all of the costs of their offsite residency training programs and that they have a written agreement detailing the financing of their offsite programs. The district court granted summary judgment in favor of the Secretary on the grounds that appellants failed to comply with either of these requirements. Because we hold appellants failed to comply with the Secretary’s “written agreement” requirement, we affirm.

I

A

Under the Medicare Act, Congress created a system to provide health insurance benefits to the elderly and disabled. 42 U.S.C. §§ 1395 et seq. This system is administered by the Centers for Medicare and Medicaid Services (“CMS”) under the authority of the Secretary. Id. § 1395kk; 42 C.F.R. §§ 400.200 et seq.

Medicare is divided into several parts; the most relevant of those parts here is Part A, which relates to hospital insurance benefits. Under the Medicare statute, CMS is empowered to reimburse inpatient hospitals for costs associated with “graduate medical education.” 42. U.S.C. § 1395ww(h). The amount reimbursed is determined based on the number of “full-time-equivalent” (“FTE”) medical residents in the hospital’s residency program each year. Id. § 1395ww(h)(2). For the time period relevant to this case, a hospital’s FTE count is calculated based on the time residents spend providing patient care activities “under an approved medical residency training program ... without regard to the setting in which the activities are performed.” Id. §. 1395ww(h)(4)(E)(i); see id. § 1395ww(d)(5)(B)(iv)(I). Thus, a hospital is eligible to count time its residents spend performing patient care activities in nonhospital settings towards its FTE count. Id, However, in order for this time to count towards a hospital’s FTE, it must incur “all, or substantially all, of the costs for the training program in that' setting.” Id.

For the relevant years here — 2000 through 2004 — CMS enforced these requirements through regulations stating:

[T]he time residents spend in nonprovi-der settings .,. may be included in determining the number of FTE residents in the calculation of a hospital’s resident count if the following conditions are met—
(i)The resident spends his or her time in patient care activities.
(ii) The written agreement between the hospital and the nonhospital site must indicate that the hospital, will incur the cost of the resident’s.salary and fringe benefits while the resident is training in the nonhospital site and the hospital is • providing reasonable compensation to the nonhospital site for supervisory teaching activities. The agreement must indicate the compensation the hospital is providing to the nonhospital site for supervisory teaching activities.
(iii) The hospital must incur all or substantially all of the costs for the training program in the nonhospital setting—

42 C.F.R. § 413.86(f)(4) (2000); see also 42 C.F.R. § 413.78(d) (2014). Thus, independent contractors evaluating a hospital’s eligibility for, and level of, reimbursement had to assess (1) the residents’ patient care activities, (2) the existence of a written agreement between the hospital'and the nonhospital site, and (3) whether the hospital is responsible for “all or substantially all” of the costs of training. 42 C.F.R. § 413.86(f)(4) (2000). While not expressly required by the Medicare statute, CMS determined the “written agreement” requirement was necessary “in order to provide an administrative tool ... to assist in determining whether hospitals would incur all or substantially all of the costs of the training in the nonhospital setting in accordance with Congressional ‘ intent.” Medicare Program; Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2005 Rates, 69 Fed.< Reg. 48,916, 49,179 (Aug. 11, 2004). CMS defined the “all or substantially all” requirement to include “the residents’ salaries and fringe benefits (including travel and lodging where applicable) and the portion of the cost of teaching physicians’ salaries and fringe benefits attributable to direct graduate medical education,” 42 C.F.R, § 413.75(b)(1) (2014).

In order to expediently process reimbursement payments, a hospital must submit a cost report to its contractor - each year in order to claim any Medicare reimbursements for residency programs in nonhospital settings. See 42 C.F.R. §§ 413.20(b), 413.24. The contractor then reviews these reports to determine the amount a hospital should be reimbursed under Medicare 'and issues a Notice of Program Reimbursement (“NPR”) to inform the hospital of the contractor’s determination. Id. § 405.1803. This determination is not necessarily final because the contractor has the option to reopen a final cost report for up to three years. Id. § 405.1885.

If a hospital disagrees with either the contractor’s initial determination or the determination made upon the reopening of a prior decision, it can challenge the NPR before the Provider Reimbursement Review Board (“PRRB”). See 42 U.S.C. § 1395oo(a). The PRRB’s decision is then subject to review by the CMS Administrator. See id. § 1395oo(f)(l); 42 C.F.R. § 405.1875(a). The CMS Administrator’s decision constitutes final agency action subject to judicial review. See 42 U.S.C. § 1395oo(f)(l); 42 C.F.R, § 405.1877(a).

B

Appellants Borgess Medical Center (“Borgess”) and Bronson Methodist Hospital (“Bronson,” collectively “the Hospitals”) are inpatient hospitals located in Kalamazoo, Michigan. In 1973, the Hospitals entered into an agreement to form a consortium to manage their health education programs and to . train their interns and residents. In this agreement, the Hospitals agreed to provide annual financing to carry out the consortium’s purpose. The Hospitals then joined Michigan State University in the late 1980s to restructure this consortium into its current form as the Michigan State University Kalamazoo Center for Medical Studies (“KCMS”).

KCMS administered graduate medical programs for various residency programs for the hospitals, including a psychiatry program, a pediatrics program, and an infectious-disease program. In order to ensure KCMS would receive the financial support necessary to operate, the Hospitals entered'into various Affiliation Agreements with KCMS in which the Hospitals agreed to incur “joint and equal responsibility for providing [KCMS] with sufficient financing to carry out its programs as negotiated on a yearly basis.” See, e.g., JA 67. However, this was not the only source of funding for KCMS, as it also received millions of dollars of revenue from other sources, such as revenue from patient care, support from Michigan State University, and funds from contracts and grants'. Thus, the arrangement required the Hospitals to equally divide a lump-sum payment to cover any of KCMS’s expenses exceeding what was available from other sources.

The Hospitals sought reimbursement on their Medicare cost reports during fiscal years 2000-2004 for costs incurred, for residents’ training at KCMS’s nonhospital climes. The Hospitals’ Medicare contractor initially determined Borgess’s claims from the cost reporting periods ending in June 2001 and June 2002 along with Bronson’s claims from 2000 and 2001 to be eligible for reimbursement, but, affer reopening these initial determinations, it ultimately denied them in 2007. Additionally, the contractor denied the initial reimbursement claim from Borgess for the cost reporting period ending in June 2003 and the initial reimbursement claims from Bronson for 2002, 2003, and 2004.

The Hospitals appealed these decisions to the PRRB, which concluded the contractors erroneously denied reimbursement for the Hospitals’ claims. Subsequently, the CMS Administrator reviewed the PRRB’s decision and reversed it on the grounds that the Hospitals failed to show they incurred all or substantially all of the costs of their residency programs and that they failed to comply with the Secretary’s “written agreement” requirement. In response to the Administrator’s decision, the Hospitals sought judicial review of the Administrator’s denial of reimbursements before the United States District Court for the District of Columbia, Both parties cross-motioned for summary judgment, and the district court ultimately ruled in favor of the Secretary on both motions. The Hospitals now appeal.

II

We review de novo the district court’s grant of summary judgment. Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 54 (D.C. Cir. 2015). The Medicare Act authorizes judicial review under the Administrative Procedure Act (“APA”). See 42 U.S.C. § 1395oo(f)(1). This Court can only set aside the Secretary’s action if it is “arbitrary, capricious, an abuse of 'discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). When reviewing an agency’s interpretation of its own regulation, we give substantial deference to the agency. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). This is especially true when the regulation concerns “a complex and highly technical regulatory program” like Medicare. Id. Thus, this Court “must defer to the .Secretary’s interpretation [of a regulation] unless an alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation.” Id.

First, we address the Secretary’s “written agreement” requirement. The Secretary’s regulations require a written agreement between the hospital and nonhospital showing the hospital will incur the cost of the. resident’s salary and fringe benefits while working offsite .along with reasonable compensation to the nonhospital for supervisory teaching activities. 42 C.F.R. § 413 86(f)(4)(ii) (2000).

The Hospitals argue the “written agreement” requirement is an improper basis for denying reimbursement because the contractor did not specifically identify it as a reason for reopening their cost report. To support this view, they rely on ■ 42 C.F.R; § 405.1887(a), which requires ■ the reviewing entity to “provide written notice to all parties to the determination or decision that is the subject of the reopening.” Because the notice for reopening did not cite 42 C.F.R. .§ 413.86(f)(4)(ii) (2000), pertaining to ■ the “written agreement” requirement, they claim they did not receive adequate notice.

We disagree. The reopening notices indicate the reimbursement claims , were reopened to “remove the [residency] rotations which occur[ed] at [KCMS] in accordance with 42 CFR [§ ] 413.86(f)(4) as the hospital did not incur all or substantially all of the cost of training in that setting.” See JA 179, 181, 183, 185. Thus, the provision cited for reopening the reimbursement claims was not limited to just 42 C.F.R. § 413,86(f)(4)(iii) (2000), which directly addresses the “all or substantially all” requirement, but also encompassed all subparts of 42 C.F.R. § 413.86(f)(4) (2000), including the “written agreement” requirement. Because the contractor cited to a provision encompassing both, the “written agreement” .requirement and the “all or substantially all” requirement, the Hospitals were put on notice that either of these requirements could serve as a basis for denying reimbursement.

Turning now to the merits, the Hospitals argue the “written agreement” requirement is satisfied by a collection of documents executed over the years, including a 1973 Agreement between the Hospitals establishing a non-profit organization that served as KCMS’s predecessor, the Hospitals’ and KCMS’s Affiliation Agreements, and KCMS’s financial statements. The Hospitals argue these documents, taken together, show they were “contractually obligated to provide all financing necessary” for the managing and operating of resident training at KCMS. Appellants’ Opening Br. 31. However, the record clearly shows that none of these documents meet the regulatory criteria for written agreements.

As noted by the district court, the 1973 Agreement is not an agreement between a hospital and a nonhospital, as required by 42 C.F.R. § 413.86(f)(4)(ii) (2000), but is rather an agreement between the Hospitals to create the predecessor to KCMS. Borgess Med. Ctr. v. Sebelius, 966 F.Supp.2d 1, 7 (D.D.C. 2013). This alone is grounds to exclude this document from consideration, but it is not the only reason for doing so. The 1973 Agreement also fails to contain the level of specificity required to meet the “written agreement” requirement’s standards. The regulation requires the agreement to indicate the hospital will'incur the cost of the resident’s salary and fringe benefits while working offsite along with reasonable compensation to the nonhospital for supervisory teaching activities. 42 C.F.R. § 413.86(f)(4)(h) (2000). The only thing the 1973 Agreement says about financing is “[t]he parties shall provide [KCMS’s predecessor] with financing to carry out its purpose as negotiated on a yearly basis.” JA 65. This fails to specify that either hospital will incur the cost of the resident’s salary, fringe benefits, or other required expenses under the regulation for any of the residency programs. Thus, it is insufficient to serve as a written agreement under the governing regulation.

The Affiliation Agreements are similarly inadequate. While these annual agreements are between the Hospitals and KCMS — and are therefore between a hospital and nonhospital — they too lack specificity. The Affiliation Agreements simply state the Hospitals will share “joint and equal responsibility for providing [KCMS] with sufficient financing to carry out its programs as negotiated on a yearly basis.” See, e.g., JA 112. These Agreements obligate the Hospitals to provide lump-sum payments to finance KCMS’s programs, but they fail to specify which programs the Hospitals are financing or how the funds will be used. Because KCMS receives millions of dollars of support from other sources, like revenue from patient care, support from Michigan State University, and revenue from contracts and grants, it is impossible to know which source is funding the residency programs. Our conclusion is buttressed by decisions of our sister circuits who, after examining comparable agreements, found them to be lacking. See Covenant Med. Ctr., Inc. v. Sebelius, 424 Fed.Appx. 434, 438 (6th Cir. 2011) (holding written agreements requiring two hospitals to “mak[e] lump sum payments to cover [residency program costs] and other costs” did not satisfy the “written agreement” requirement); Medcenter One Health Sys. v. Sebelius, 635 F.3d 348, 350 (8th Cir. 2011) (holding a letter obligating two hospitals to cover the operating deficits of a nonhospital was not sufficient to meet the “written agreement” requirement). Thus, the district court correctly held these agreements “fail[ed] to sufficiently detail the compensation scheme for supervisory teaching activities and the amounts the Hospitals will actually pay for these activities.” Borgess, 966 F.Supp.2d at 8.

As a last ditch effort, the Hospitals claim either their understanding of the Agreements or their conduct should show they complied with the underlying purpose of the “written agreement” requirement. However, the regulation provides no option for satisfying the “written agreement” requirement through conduct. See 42 C.F.R. § 413.86(f)(4)(ii) (2000).

Even if we did look to the Hospitals’ conduct, the record does not clearly indicate they complied. The Hospitals rely upon KCMS’s financial records from 2000-2004 to show they did pay for the expenses required under the Secretary’s regulation. However,, much like the Affiliation Agreements, these financial records lack the required specificity.-While .these records do show the total support given to KCMS from the Hospitals along with KCMS’s total expenses for each year, they fail to provide any details regarding how the funds were allocated to the residency programs. Furthermore, the records make no mention of the Hospitals incurring the costs for their residents’ salaries and fringe benefits while working at KCMS or of the compensation KCMS received for supervisory teaching activities.

The Hospitals’ failure to comply with the “written agreement” requirement alone is sufficient grounds to affirm the district court. Therefore, we need not decide whether the Hospitals’ cost-sharing arrangement complied with the “all or substantially all” requirement.

Ill

For the foregoing reasons, the district court’s grant of summary judgment is

Affirmed.