source: Caselaw Access Project

author: PER CURIAM SUTTON, Circuit Judge,

license: Public Domain

text:
    William DODDS, Superintendent; Highland Local School District; Shawn Winkelfoos, Principal; Board of Education of the Highland Local School District, Third Party Defendants-Appellants, v. UNITED STATES DEPARTMENT OF EDUCATION; John King, Secretary of Education; Loretta E. Lynch, Attorney General; United States Department of Justice; Vanita Gupta, Principal Deputy Assistant Attorney General, Defendants, Jane Doe, a minor by and through her legal guardians Joyce and John Doe, Intervenor-Third Party Plaintiff-Appellee.
    No. 16-4117
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: December 15, 2016

      Before: KEITH, SUTTON, and DONALD, Circuit Judges.
   The court delivered a

PER CURIAM

order. SUTTON, J. (pp. 222-24), delivered a separate dissenting opinion.

ORDER

Plaintiffs Highland Local School District Board of Education, Highland Local School District, its superintendent, and its principal (“Highland”) appeal a preliminary injunction ordering the school district to treat an eleven-year old transgender girl as a female and permit her to use the girls’ restroom. Highland moves to stay the injunction pending appeal and to file an appendix under seal which contains documents filed under seal in the district court. Third-Party Plaintiff Jane Doe, a minor and special needs student, by and through her legal guardians, opposes a stay. Defendants, various government entities and individuals, have not responded to the motion to stay. Highland filed a reply. Doe moves for leave to file a sur-reply, and Highland opposes the motion.

First, we address the procedural motions. Highland moves to file a declaration of Attorney Steven O’Ban in support of its motion to stay under seal because it contains exhibits that were filed under seal in the district court. Highland is correct that “[documents sealed in the lower court ... must continue to be filed under seal in this court.” 6th Cir. R. 25(h)(5). But O’Ban’s declaration does not contain any confidential information, and only four of the exhibits attached to his declaration were filed under seal in the district court and are electronically inaccessible. Therefore, only those four exhibits need to be filed under seal. Thus, we need only grant the motion in part.

Doe moves for leave to file a sur-reply so that she may respond to an argument raised for the first time in Highland’s reply to the motion for stay. Although Highland does not specifically argue that the district court abused its discretion in failing to conduct an evidentiary hearing, it does allege that we need not give deference to the district court’s factual findings because it did not conduct an evidentiary hearing. Doe, in her sur-reply, notes that Highland concurred with her that no evi-dentiary hearing was necessary. Because Doe’s sur-reply is relevant, we will grant the motion to file a sur-reply.

Next, we address the motion to stay the preliminary injunction. “A stay is an intrusion into the ordinary processes of administration and judicial review.” Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citation omitted). To determine whether to stay the grant of a preliminary injunction, we balance four factors: the movant’s likelihood of success on appeal; whether irreparable injury to the movant will result in the absence of a stay; prospective harm to others if a stay is granted; and the public’s interest in granting a stay. See Mich. Coal. of Radioactive Mat. Users, Inc. v. Griep entrog, 945 F.2d 150, 153 (6th Cir. 1991). “The first two factors ... are the most critical.” Nken, 556 U.S. at 434, 129 S.Ct. 1749.

The crux of this case is whether transgender students are entitled to access restrooms for their identified gender rather than their biological gender at birth. To demonstrate a likelihood of success on the merits, the movant must show, “at a minimum, serious questions going to the merits.” Mich. Coal., 945 F.2d at 153 (internal citation omitted). “It is not enough that the chance of success on the merits be better than negligible.” Nken, 556 U.S. at 435, 129 S.Ct. 1749 (citation omitted). “[M]ore than a possibility of relief is required.” Id. While the Supreme Court has stayed a similar case from another Circuit, see G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — U.S.-, 136 S. Ct. 2442,195 L.Ed.2d 888 (2016) (Mem), that fact does not satisfy the test required of us here, and does nothing more than show a possibility of relief, which is not enough to grant a stay.

Furthermore, Doe’s personal circumstances—her young age, mental health history, and unique vulnerabilities—and her use of the girls’ restroom for over six weeks, which has greatly alleviated her distress, differentiate her case from Gloucester County. Permitting Highland to again single her out, and disrupt the status quo, is distinct from the stay granted in Gloucester County, which maintained the status quo as opposed to disrupting it. Maintaining the status quo in this case would protect Doe from the harm that would befall her if the injunction is stayed.

We are not convinced that Highland has made its required showing of a likelihood of success on appeal. Under settled law in this Circuit, gender nonconformity, as defined in Smith v. City of Salem, is an individual’s “failure] to act and/or identify with his or her gender....

Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” 378 F.3d 566, 575 (6th Cir. 2004); see also Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir.2011) (“A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”); G.G. ex rel. Grimm v. Gloucester County. School Bd., 822 F.3d 709, 729 (4th Cir.2016) (Davis, J., concurring) (“[T]he weight of authority establishes that discrimination based on transgender status is already prohibited by the language of federal civil rights statutes, as interpreted by the Supreme Court.”).

Further, we are not convinced that Highland’s allegations of harm rise to the level of irreparable harm. See Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (“The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.”). Thus, Highland fails to meet its burden of proving the two “most critical” factors required of our balancing test.

However, the record establishes that Doe, a vulnerable eleven year old with special needs, will suffer irreparable harm if prohibited from using the girls’ restroom. Her special education class, which previously used the nurse’s restroom to accommodate Doe, has started using the sex-separate multi-user restrooms now that Doe can use the girls’ restrooms. Highland’s exclusion of Doe from the girls’ restrooms has already had substantial and immediate adverse effects on the daily life and well-being of an eleven-year-old child (i.e. multiple suicide attempts prior to entry of the injunction). These are not distant or speculative injuries—staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction, further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom, and subject her to further irreparable harm.

Lastly, public interest weights strongly against a stay of the injunction. The district court issued the injunction to protect Doe’s constitutional and civil rights, a purpose that is always in the public interest. See, e.g., G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071,1079 (6th Cir. 1994); Cohen v. Brown Univ., 991 F.2d 888, 906 (1st Cir. 1993) (“[T]he overriding public interest l[ies] in the firm enforcement of Title IX.”). Thus, a stay is improper in this case.

The motion for leave to file the declaration of Steven O’Ban under seal, including the attached exhibits, is GRANTED in part. Only those documents filed under seal in the district court that are electronically inaccessible shall be maintained under seal in this court. Highland is DIRECTED to file a public version of O’Ban’s declaration redacting only those documents filed under seal in the district court within seven (7) days of the date of entry of this order. The motion for leave to file a sur-reply is GRANTED, and the clerk shall FILE Doe’s tendered sur-reply. The motion to stay is DENIED.

DISSENT

SUTTON, Circuit Judge,

dissenting.

The district court held that Title IX requires federally funded schools to permit transgender students to use the public bathrooms of them choice. In response, the school board sought a stay of that decision, which the district court denied and which my colleagues now deny as well. I must respectfully dissent.

The Supreme Court recently faced the same issue and granted the same request. As in this case, a transgender student filed an action under Title IX to enjoin the school district from preventing such students from using the bathroom of their choice. As in this case, the district court granted relief in favor of the student. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., No. 4:15-cv-54, 2016 WL 3581852 (E.D. Va. June 23, 2016). And as in this case, the district court and court of appeals refused to stay the decision pending further review. See 654 Fed.Appx. 606 (4th Cir. 2016). The school district filed a stay request with the Supreme Court while the Court considered the school board’s petition for review of the Fourth Circuit’s Title IX decision. On August 3, 2016, the Court granted the stay. 136 S.Ct. 2442. And on October 28, the Court granted the petition. No. 16-273, 2016 WL 4565643, at *1. The Court presumably will hear argument in the case this Term. The stay will remain in effect until the Court resolves the issue.

The only material difference between this stay request and the stay requests in Gloucester County is that the Supreme Court has now granted the school board’s certiorari petition — something the Fourth Circuit could not have known at the time it acted and something the district court in our case did not know at the time it acted. But that distinction makes a stay more appropriate in our case. Just as the plaintiff in Gloucester County must wait for Supreme Court review before changing the status quo, so should the plaintiff in orn-ease be required to wait for that decision before changing the status quo. Similar treatment of similar plaintiffs is the essence of equal justice under law.

That is all anyone should need to know to resolve this matter. Ours is a hierarchical court system, one that will not work if the junior courts do not respect the lead of the senior court.

Let me add three other points for the sake of completeness: (1) a reference to the standard for granting a stay, (2) its application to a recently completed area of institutional litigation, and (3) a brief response to my colleagues’ efforts to distinguish this case from Gloucester County.

A stay is appropriate if the petitioner demonstrates a reasonable probability that the Court will grant certiorari and reverse the decision below and that denying the stay would inflict irreparable harm on the petitioner. Maryland v. King, — U.S. —, 133 S.Ct. 1, 2,183 L.Ed.2d 667 (2012) (Roberts, C.J., in chambers). When the Supreme Court stayed the judgment in Gloucester County, it necessarily found that the school board was reasonably likely to succeed on the merits and that it would suffer irreparable harm without a stay. So, it follows, in our case.

The setting of today’s stay request is reminiscent of another set of individual-rights cases with some parallels to this one. After the Supreme Court invalidated the Defense of Marriage Act in United States v. Windsor, — U.S. —, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), several district courts recognized a right to same-sex marriage under the Fourteenth Amendment. In the aftermath of those decisions, the Court had to decide whether to let those decisions go into effect immediately or to stay them pending the States’ certio-rari petitions. The Court stayed the first of the decisions. Herbert v. Kitchen, — U.S. —, 134 S.Ct. 893, 187 L.Ed.2d 699 (2014). Our court, notably, followed suit by staying a series of district court decisions recognizing a right to same-sex marriage. DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014) (order). We should take the same path here.

Several other courts of appeals took the same cue and granted similar stay requests. In one of those decisions, Judge Hurwitz of the Ninth Circuit persuasively explained how he saw it. He acknowledged that he would have come to a different conclusion if the motion for a stay had come to him on a “clean[ ] slate,” and he acknowledged that an unexplained stay order by the Supreme Court did not technically bind him in a different case. Latta v. Otter, 2014 U.S. App. LEXIS 16057, at *15 (9th Cir. May 20, 2014) (Hurwitz, J., concurring). But he nonetheless felt obligated to grant a stay in light of the Court’s “clear message” that a stay was warranted. Id. at *17. The Supreme Court vindicated Judge Hurwitz’s reasoning when it reversed the courts that departed from this path by refusing to grant stays while petitions for certiorari were pending. E.g., McQuigg v. Bostic, — U.S. —, 135 S.Ct. 32, 189 L.Ed.2d 884 (2014); see William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U.J.L. & Liberty 1, 7-8 (2015). The lesson is straightforward: The lower courts should adhere to the Supreme Court’s stay decisions when faced with indistinguishable claims. If anything, the case for following the Supreme Court’s lead is stronger here because the Supreme Court has already granted review in Gloucester County.

My colleagues try to distinguish Gloucester County on three grounds. They first argue that there is some Sixth Circuit law that applies Title VII to gender non-conforming employees. But that reality is no more relevant than the Fourth Circuit’s holding in Gloucester County that a transgender individual has a right under Title IX to use the bathroom of their choice. They next point out that the plaintiff in Gloucester County was seventeen while the plaintiff here is eleven and has had more mental-health challenges. True, there are differences between children who are seventeen and eleven, just as there are differences between children who are nine and fifteen. True also, some children have greater mental-health needs than others. But I suspect that the Supreme Court’s decision on the merits in Gloucester County will apply the same rule to all of them regardless of their age or the level of counseling they require. My colleagues next argue that the status quo has changed because the school board has complied with the district court’s injunction for six weeks. But the status quo at issue in a stay motion is the lay of the land before the district court’s decision — whether here or in Gloucester County, whether it takes over six weeks to resolve the various stay motions (as here) or five weeks (as in Gloucester County). A contrary rule would reward delay by the courts and the party opposing the stay, and would punish parties who comply with court orders.

The Supreme Court presumably will resolve the Title IX issue in 2017. In the meantime, the Court has indicated that we should wait for further instructions before granting relief on these sorts of claims. These lawsuits pose novel questions and, if successful, will require novel changes to school restrooms and locker rooms. If past is precedent, the Court does not want a patchwork of provisional answers to emerge while it deliberates.

Which leads to one last consideration. If we decline to respect the Supreme Court’s lead in granting a stay request in precisely the same type of case, why should we expect the district courts in our circuit to respect our lead in granting stay requests in related cases? Middle-management courts that ignore instructions from a higher court will eventually learn how it feels and how poorly such a system works.

I respectfully dissent.


author: BERNICE BOUIE DONALD, Circuit Judge.

text:
    James L. HALE, Plaintiff-Appellee, v. Bill JOHNSON, President and CEO of the Tennessee Valley Authority, Defendant-Appellant.
    No. 16-5475
    United States Court of Appeals, Sixth Circuit.
    Argued: December 6, 2016
    Decided and Filed: December 29, 2016

      ARGUED: Tricia L. Roelofs, Tennessee Valley Authority, Detroit, Michigan, for Appellant. Douglas S. Hamill, Burnette, Dobson & Pinchak, Chattanooga, Tennessee, for Appellee. ON BRIEF: Tricia L. Roelofs, Edwin W. Small, Tennessee Valley Authority, Detroit, Michigan, for Appellant. Douglas S. Hamill, Burnette, Dob-son & Pinchak, Chattanooga, Tennessee, for Appellee.
    Before: BOGGS, GILMAN, and DONALD, Circuit Judges.
   OPINION

BERNICE BOUIE DONALD, Circuit Judge.

After the Tennessee Valley Authority (“TVA”) discharged James Hale for failing a pulmonary function test (“PFT”) — a requirement imposed by the TVA for employees to maintain their necessary medical clearance — Hale brought claims for disability discrimination and failure to accommodate under the Americans with Disabilities Act and the Rehabilitation Act. The TVA moved for summary judgment, arguing that the court lacked subject-matter jurisdiction to hear the merits of Hale’s claim under Title VII’s national-security exemption and the Egan doctrine. The district court disagreed, but certified the case for interlocutory appeal. For the following reasons, we DENY the TVA’s interlocutory appeal.

I.

All plant officers working for the TVA are required to maintain medical clearance as a condition of employment. Since his employment began in 2009, Hale had always maintained the level of clearance necessary for his position. However, in 2013, the TVA made a PFT a requirement to obtain this clearance; Hale failed the testing because of his chronic obstructive pulmonary disorder. The TVA terminated him as a result.

Hale then brought claims for disability discrimination and failure to accommodate under the Americans with Disabilities Act and the Rehabilitation Act. The TVA moved to dismiss for lack of subject-matter jurisdiction, arguing that: (1) Title VII’s national-security exemption applies to the Rehabilitation Act and precludes the court from reviewing the physical-fitness requirements imposed by the Nuclear Regulatory Commission (“NRC”) in the interests of national security; and (2) the Egan doctrine precludes the judiciary from reviewing the TVA’s determination that Hale lacked the physical capacity to fulfill his job duties because this decision was one of national security.

The district court rejected both of the TVA’s arguments. First, it noted that neither the Rehabilitation Act nor any provisions of Title VII that it references mentions the national-security exemption, and so concluded that the exemption was inapplicable to the Rehabilitation Act. Turning to the second argument, the district court reasoned that nothing in the language of the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), indicated an intent for its holding to apply outside of the context of security clearances. However, noting the importance of the issues involved on appeal and the lack of Sixth Circuit precedent on the issues, the court certified the case for interlocutory appeal under 28 U.S.C. § 1292(b).

II.

Title VII of the Civil Rights Act was amended in 1972 to provide federal employees a private right of action against their employers for employment discrimination. Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). However, under Title VII’s national-security exemption, it is not unlawful for an employer to discharge an employee from his or her position if:

(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and
(2) such individual has not fulfilled or has ceased to fulfill that requirement.

42 U.S.C. § 2000e-2(g).

The Rehabilitation Act prohibits federal agencies from discriminating against their employees on the basis of disability. Smith v. U.S. Postal Serv., 742 F.2d 257, 258-59 (6th Cir. 1984). It makes available to plaintiffs “[t]he remedies, procedures, and rights set forth in section 717 of the CM Rights Act of 1964 (42 U.S.C. 2000e-16), including the application of sections 706(f) through 706(k) (42 U.S.C. 2000e-5(f) through (k)) (and the application of section 706(e)(3) (42 U.S.C. 2000e-5(e)(3)) to claims of discrimination in compensation).” 29 U.S.C. § 794a(a)(l). Though this provision specifically references Section 717 of Title VII, neither § 794a nor the subsections it cross-references mention Title VII’s national-security exemption. So, our task is to ascertain whether, under recognized principles of statutory construction, the national-security exemption applies to § 794a, notwithstanding the absence of an explicit reference to the exemption.

A.

The TVA reasons that the national-security exemption applies to all employment-discrimination claims because Section 717 borrows Title VII’s federal-employee provisions, which in turn incorporate.the national-security exemption. So, it asserts that we must determine what remedies, procedures, and rights Section 717 encompasses. That section, the TVA asserts, has historically incorporated rights and remedies not specifically cross-referenced therein; therefore, the national-security exemption applies generally to the Rehabilitation Act.

Our inquiry begins with the language of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). Where the statute’s language is clear and unambiguous and the statutory framework is coherent and consistent, “the sole function of the courts is to enforce it according to its terms.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)); accord Barnhart, 534 U.S. at 450, 122 S.Ct. 941. This plain meaning is conclusive, except in the “rare cases” when such a meaning “will produce a result demonstrably at odds with the intentions of its drafters.” Ron Pair, 489 U.S. at 242,109 S.Ct. 1026 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)). Nonetheless, we must take care not to interpret the language in a vacuum; instead, we must look to the “structure, history, and purpose” of the statutory scheme. Abramski v. United States, — U.S. —, 134 S.Ct. 2259, 2267, 189 L.Ed.2d 262 (2014) (quoting Maracich v. Spears, — U.S. —, 133 S.Ct. 2191, 2209, 186 L.Ed.2d 275 (2013)). Importantly, when “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Barnhart, 534 U.S. at 452, 122 S.Ct. 941 (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)). In the broader context, when “Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions,” we must take care not to read one part of the scheme “to provide a different, and conflicting, solution to a problem that has already been specifically addressed elsewhere” in the scheme. Negusie v. Holder, 555 U.S. 511, 545, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (Thomas, J., dissenting) (quoting Varity Corp. v. Howe, 516 U.S. 489, 519, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)).

First, looking to the plain, unambiguous language of the statute, as noted, neither § 794a(a)(l) nor the subsections it cross-references contain an express reference to the national-security exemption. Though the TVA would have us hold that all of Title VII applies to the Rehabilitation Act, that conclusion does not naturally follow from the language of § 794a, which expressly limits the “remedies, procedures, and rights” available to those set forth in specifically listed sections of Title VII. If Congress intended for all of Title VII’s provisions to apply, surely it would not have enumerated specific sections. Indeed, in the adjacent provision, § 794a(a)(2), Congress managed to express its intent to make all of Title VI applicable to that subsection by broadly delineating the availability of “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).” 29 U.S.C. § 794a(a)(2). We presume that by declining to include a reference to Title VII in its entirety in the preceding subsection, it intended for only the specified sections of Title VII to apply. See Barnhart, 534 U.S. at 452, 122 S.Ct. 941. Thus, absent indications that excluding the national-security exemption from the Rehabilitation Act is “demonstrably at odds” with the drafters’ intentions, we will not stray from this interpretation. See Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026 (citation omitted).

Turning to the history of these provisions, we have not found, nor has the TVA cited, anything in the legislative history of the Rehabilitation Act or Section 717 that firmly establishes the applicability of the exemption. The TVA points us to the legislative history of Section 717, an excerpt of which reads: “In providing the statutory basis for such appeal or court access, it is not the intent of the Committee to subordinate any discretionary authority or final judgment now reposed in agency heads by, or under, statute for national security reasons in the interests of the United States.” S. Rep. No. 92-681, at 21 (1972) (Conf. Rep.), reprinted in 1972 U.S.C.C.A.N. 2137, 2185. But the TVA’s reliance on this passage merely begs the question as to whether the national-security exemption is applicable in this context: it assumes that the agency heads have authority under the national-security exemption, but the TVA has not established that any authority granted under that exemption applies to Section 717 of the Rehabilitation Act.

The inapplicability of the national-security exemption to the Rehabilitation Act is reinforced by the seeming absence of case law applying the exemption to claims brought under the Rehabilitation Act. The TVA has not cited, nor have we found, a single such case. Nonetheless, the TVA insists that it is Section 717 that incorporates the exemption. However, it cites only one case directly applying the national-security exemption to a claim brought under that section. In Molerio v. F.B.I., the plaintiff brought a Title VII claim under Section 717, alleging that the Federal Bureau of Investigation’s policy of denying top-secret security clearance to those with relatives residing in countries with interests hostile to those of the United States had a disparate impact on applicants like him of Cuban ancestry. 749 F.2d 815, 819, 822-28 (D.C. Cir. 1984). The court disagreed, reasoning that the policy would have no more impact on Cubans than on individuals from places like East Germany or Iran. Id. at 823. It went on to recognize that national-security clearance requirements are generally valid under the national-security exemption and held that such requirements were not by themselves evidence of discrimination. Id. However, it did not analyze the applicability of the exemption to Section 717. Moreover, the court did not hold that the exemption precluded it from judicial review of the plaintiffs claim. Therefore, this case does not convince us to rule in the TVA’s favor.

We find equally unpersuasive the remaining authority cited in the TVA’s brief. For instance, it cites Chandler v. Roudebush for the proposition that Section 717 grants federal employees “the full rights available in the courts as are granted to individuals in the private sector under title VII.” 425 U.S. at 841, 96 S.Ct. 1949. Although the Court uses this broad language, it does so in the context of deciding that, after the 1972 amendments, federal employees have the same right as private employees to a de novo trial of their employment-discrimination claims. Id. That federal employees are entitled to this right under Section 717 was plainly evidenced from that section’s express reference to Section 706, which historically gave private-sector employees the right to de novo review of their claims. Id. at 844-45, 96 S.Ct. 1949. To confirm the plain reading of the statute, the court looked to the legislative history, which “unmistakably” indicated that it was Congress’s intent to provide both private and federal employees the right to trials in district courts. Id. at 848-61, 96 S.Ct. 1949. Here, we are neither faced with an express reference to a section that applies the national-security exemption, nor unmistakable indications of congressional intent that the exemption applies to Hale’s claims.

The TVA also points us to Smith v. United States Postal Service. But though the court in Smith applied a procedure not specifically referenced in the Rehabilitation Act, again, it involved a much clearer indication of congressional intent to include those rights and procedures than we have here. 742 F.2d at 260-62 (applying an exhaustion requirement not specifically referenced in the Rehabilitation Act based on “longstanding congressional policy favoring resolution of claims of employment discrimination through administrative conciliation”).

When faced with language that references only specific sections of Title VII and less-than-illuminating case law and legislative history, the TVA’s position cannot prevail. See Chandler, 425 U.S. at 848, 96 S.Ct. 1949 (“[T]he plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” (quoting Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 69 L.Ed. 660 (1925))). Therefore, we hold that the national-security exemption does not apply to Hale’s Rehabilitation Act claim.

III.

Egan and its progeny preclude judicial review of security-clearance decisions. The TVA insists that Egan’s underlying logic indicates that it should not be narrowly construed, as emphasized by two circuit decisions that extend its reasoning outside of the scope of security clearances. See Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014); Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013). Consequently, it reasons that “[a] predictive judgment about whether an individual has the requisite level of physical capacity to effectively protect a nuclear plant from attack involves precisely the same type of ‘predictive judgment’ based on national security concerns that the Egan Court determined was unre-viewable.” Appellant Br. at 28 (quoting Egan, 484 U.S. at 529, 108 S.Ct. 818).

The TVA’s argument for the extension of Egan in this context is unavailing. There, Egan, who worked for the Navy, was fired after the Director of the Naval Civilian Personnel Command denied a security clearance necessary for Egan’s position based on his criminal record and history of drinking problems. 484 U.S. at 520-22, 108 S.Ct. 818. The case required the Court to resolve the “narrow question” of whether the Merit Systems Protection Board, which declined to review the propriety of the Navy’s denial of Egan’s security clearance, “has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action.” Id. at 520, 524, 108 S.Ct. 818. Emphasizing executive agencies’ role to protect information bearing on national security and the President’s authority to control access to such information, the Court concluded that the “sensitive and inherently discretionary judgment call” required to make predictive judgments about an individual’s likelihood of compromising sensitive information is best left to those with an expertise in rendering judgments based on this “inexact science.” Id. at 524-30,108 S.Ct. 818.

Though we have logically applied the rule announced in Egan to preclude judicial review of security-clearance decisions, see Tenenbaum v. Caldera, 45 Fed.Appx. 416, 417-18 (6th Cir. 2002) (collecting cases), nothing in the language of the Court’s opinion suggests that even if its reasoning could extend beyond security clearances, it could reach the scope the TVA desires. For one, the Court explicitly narrowed its holding to address the review of decisions to revoke or deny security clearances, Egan, 484 U.S. at 520, 108 S.Ct. 818, which are not at issue in this case. It then proceeded to analyze the importance of executive control over access to national-security information, id. at 526-30, 108 S.Ct. 818, not general national-security concerns such as those applicable in determining whether an individual has the physical capacity to guard a nuclear plant. Even more importantly, due to the highly discretionary and imprecise nature of making judgments regarding a person’s propensity to disclose classified information, the Court concluded that “[cjertainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence.” Id. at 529, 108 S.Ct. 818.

In contrast to this type of predictive judgment, the determination of an individual’s physical capability to perform a job is based on hard science and has historically been reviewed by courts and administrative agencies. We need not create a per se rule that Egan can never apply outside of the context of security clearances. But put simply, nothing in Egan suggests that its holding applies to physical-fitness judgments, even if purportedly based on the interest of national security. See Toy v. Holder, 714 F.3d 881, 885 (5th Cir. 2013) (“No court has extended Egan beyond security clearances, and we decline to do so.”); Rattigan v. Holder, 689 F.3d 764, 768 (D.C. Cir. 2012) (“[W]e adhere to our holding that Egan’s absolute bar on judicial review covers only security clearance-related decisions made by trained Security Division personnel....”).

The cases relied on by the TVA in support of extending Egan do not demand a contrary result. In Kaplan, the court extended Egan to prohibit review of the Department of Defense’s “determinations concerning eligibility of an employee to occupy a ‘sensitive’ position, regardless of whether the position requires access to classified information.” Kaplan, 733 F.3d at 1151 (emphasis added). The court reasoned that “sensitive positions” affecting national security and access to classified information are “parallel concepts” and that there is “no meaningful difference in substance between” the two. Id. at 1159-60. We decline to pass judgment on wheth.er Egan’s scope includes more than just security clearances because, even if Kap-lan properly extended Egan, the eligibility to occupy a “sensitive” position more closely resembles the type of predictive judgment in Egan than does a judgment concerning physical fitness. Kaplan em-' phasized that similar types of expertise are necessary in making employment decisions about those who may occupy “sensitive positions” and those who have access to classified information. Id. at 1156,'1164. But, as previously noted, the judiciary plainly does not lack the kind of expertise in judgments concerning an individual’s physical fitness that would preclude review of such determinations.

Likewise, in Foote, the court extended Egan to preclude review of the Department of Energy’s decision not to certify an applicant based on the Human Reliability Program, specifically the program’s psychological examination. Foote, 751 F.3d at 657-58. Yet again, this highly subjective program is distinct from the physical examination in this case. In Foote, the Human Reliability Program was designed to weed out “unreliable or unstable individuals,” which, like in Egan, involved an attempt to predict an individual’s propensity to compromise sensitive information. See id. at 658-59. Such an attempt is not involved in a physical-fitness examination.

Therefore, we will not extend Egan to preclude judicial review of an agency’s determination regarding an employee’s physical capability to perform the duties of his or her position. Remaining faithful to Egan and the logic on which it stands prevents this circuit from slipping into an untenable position wherein we are precluded from reviewing any federal agency’s employment decision so long as it is made in the name of national security.

IV.

For the aforementioned reasons, we DENY the TVA’s interlocutory appeal.

      . One case, Guillot v. Gairett, references the exemption in the context of a Rehabilitation Act claim, but the Fourth Circuit decided that case under the Egan doctrine, 970 F,2d 1320, 1324-26 (4th Cir. 1992). So its reference to the applicability of the exemption is dicta and, given the lack of analysis on the issue, it is unpersuasive dicta.


author: SILER, Circuit Judge. JANE B. STRANCH, Circuit Judge,

text:
    IN RE: OHIO EXECUTION PROTOCOL LITIGATION. Angelo Fears, et al., Petitioners-Appellants, v. John Kasich, et al., Respondents-Appellees.
    No. 16-3149
    United States Court of Appeals, Sixth Circuit.
    Argued: November 18, 2016
    Decided and Filed: December 30, 2016
    Rehearing En Banc Denied February 28, 2017

      ARGUED: Erin G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellants. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Allen L. Bohnert, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, Randall Porter, Kimberly S. Rigby, Rachel Troutman, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, Lawrence J. Greger, GREGER LAW OFFICE, Dayton, Ohio, Vicki Werneke, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, Laurence E. Komp, Manchester, Missouri, for Appellants. Charles L. Wille, Thomas Madden, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
    Before: NORRIS, SILER, and STRANCH, Circuit Judges.

       Judge Cook recused herself from participation in this ruling. Judge Stranch would grant rehearing for the reasons stated in her dissent.

   SILER, J., delivered the opinion of the court in which NORRIS, J., joined. STRANCH, J. (pp. 240-44), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

Plaintiffs are Ohio death-row inmates challenging Ohio’s execution protocol and practice. Defendants include Ohio officials as well as anonymous drug manufacturers, compounders, intermediaries, and others involved in Ohio’s execution process. Plaintiffs appeal from a district court’s entry of a protective order precluding the disclosure of any information that could reveal the identity of suppliers or manufacturers of Ohio’s legal-injection drugs as well as anyone related to carrying out executions in Ohio. During the pendency of this appeal, we affirmed a related appeal from an order dismissing certain constitutional challenges to Ohio’s execution protocol. Phillips v. DeWine, 841 F,3d 405 (6th Cir. 2016). We now AFFIRM the entry of the protective order because the district court did not abuse its discretion in concluding that Defendants established good cause for protection from certain discovery.

I.

Starting around 2011, Ohio death-row inmates filed a spate of lawsuits in the Southern District of Ohio to challenge Ohio’s protocols for lethal injunction. In 2014, Ohio enacted legislation to amend Ohio Revised Code § 149.43, thereby creating two new statutes, Ohio Revised Code §§ 2949.221 and 2949.222, to address confidentiality of information about lethal injection in Ohio. The secrecy statute precludes, among other things, the release of information that would identify the manufacturer or supplier of drugs for use in Ohio’s lethal-injection protocol. See Ohio Rev. Code Ann. §§ 2949.221, 2949.222. In Phillips, the district court dismissed some of the litigation challenging the protocol on grounds of lack of subject-matter jurisdiction and failure to state a claim. Phillips v. DeWine, 92 F.Supp.3d 702, 718 (S.D. Ohio 2015).

In the litigation giving rise to this appeal, Defendants moved for a protective order to prevent the release of any information in their possession that could identify the sources of Ohio’s lethal-injection drugs. After hearing evidence and testimony from four witnesses, the district court granted the motion and issued the following protective order:

The Court therefore ORDERS that any information or record in Defendants’ possession, custody, or control that identifies or reasonably would lead to the identification of any person or entity who participates in the acquisition or use of the specific drugs, compounded or not, that Ohio indicates in its execution protocol it will use or will potentially seek to use to carry out executions is protected and not subject to discovery. This protective order is intended to extend to those persons who or entities that have not waived or forfeited its protection and who manufacture, compound, import, transport, distribute, supply, prescribe, prepare, administer, use, or test the compounding equipment or components, the active pharmaceutical ingredients, the execution protocol drugs or combination of drugs, the medical supplies, or the medical equipment used in carrying out any execution under Ohio Revised Code § 2949.22. This protective order governs discovery only in this litigation and does not apply outside this litigation or (in the increasingly unlikely event) after this litigation concludes. '

In re Ohio Execution Protocol Litig., No. 2:ll-cv-1016, 2015 WL 6446093, at *9, 2015 U.S. Dist. LEXIS 144926, at *45-46 (S.D. Ohio Oct. 26, 2015). The district court certified the order for interlocutory appeal, and we granted Plaintiffs’ petition to appeal. Shortly thereafter, the district court reassigned and consolidated Phillips with this litigation. Several days after the protective order issued, Plaintiffs moved for a modification that would permit limited disclosures to counsel only under the designation “attorney’s eyes only.” The district court denied the motion, noting that “disclosure of identities subjects the disclosed persons or entities to suit.”

In October 2016, before oral argument, the parties notified the court that Ohio plans to move forward with three scheduled executions, starting with Ronald Phillips’s execution in January 2017. Defendants represented that they intend to use a new three-drug protocol: midazolam hydrochloride, potassium chloride, and one of the following drugs: rocuronium bromide, vecuronium bromide, or pancuronium bromide. The new protocol mirrors the Oklahoma protocol approbated by the Supreme Court in June 2015. See Glossip v. Gross, — U.S. —, 135 S.Ct. 2726, 2734-35, 192 L.Ed.2d 761 (2015) (“The option that Oklahoma plans to use to execute petitioners calls for the administration of 500 milligrams of midazolam followed by a paralytic agent and potassium chloride. The paralytic agent may be pancuronium bromide, vecuronium bromide, or rocuronium bromide, three drugs that, all agree, are functionally equivalent for purposes of this case.”).

We affirmed the judgment in Phillips in November 2016 and now address the instant discovery dispute. Phillips v. DeWine, 841 F.3d 405, 432 (6th Cir.2016).

II.

Under Federal Rule of Civil Procedure 26(c)(1), a district court may grant a protective order preventing the production of discovery to protect a party or entity from “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). We review the grant of a protective order for abuse of discretion. Serrano v. Cintas Corp., 699 F.3d 884, 899-900 (6th Cir. 2012). “The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error: ‘A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’” Highmark Inc. v. Allcare Health Mgmt. Sys., — U.S. —, 134 S.Ct 1744, 1748 n.2, 188 L.Ed.2d 829 (2014) (quoting Cooter & Gell v. Hartman Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). To that end, “in reviewing a trial court’s evidentiary determinations, this court reviews de novo the court’s conclusions of law and reviews for clear error the court’s factual determinations that underpin its legal conclusions.” United States v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006) (citation omitted).

III.

Plaintiffs argue that the protective order prevents the prosecution of their federal and state causes of action. Plaintiffs maintain that the protective order is contrary to law because the order cuts off all discovery on Ohio’s execution procedures, including previously produced discovery. They contend that the otherwise barred discovery would assist in identifying the suppliers or manufacturers of Ohio’s legal-injection drugs as well as anyone related to carrying out executions in Ohio. Plaintiffs impugn the sufficiency of unknown laboratories using unknown testing protocols to evaluate drugs manufactured or compounded by an anonymous source.

The protective order runs afoul with Rule 26(c), Plaintiffs argue, because Defendants failed to make particular and specific demonstrations of harm. Plaintiffs contend that the district court conflated all groups of Defendants and failed to analyze the particularized harm suffered by each discrete entity. Plaintiffs suggest that the district court immunized the drug . manufacturers and their affiliates from litigation by relying on generalized, objective harm suffered from the risk of threats, intimidation, and harassment. Even fear of abusive litigation, Plaintiffs contend, is insufficient to justify a protective order. According to Plaintiffs, the record is devoid of evidence that, but for the protective order, Ohio could not carry out executions because of harm to drug manufacturers upon discovery of their identities. Plaintiffs emphasize that Defendants did not allege Ohio’s inability to carry out executions as a basis for the protective order. But even so, according to Plaintiffs, Defendants failed to produce or point to any credible, specific evidence in the record to demonstrate an inability to obtain lethal-injection drugs or to carry out executions in the absence of a protective order.

Plaintiffs posit that even if evidence exists of harm to Defendants, the harm caused by cutting off discovery in this case outweighs the harms attributed to Defendants. Plaintiffs argue that the protective order violates procedural due process because the order circumscribes their right to vital information to support their claims. Plaintiffs also asperse the protective order as federalizing a state privilege under Ohio Revised Code §§ 2949.221 and 2949.222, which has no foothold under federal law. In the alternative, to mollify Defendants’ concerns, Plaintiffs request a designation of “attorney’s eyes only” for the discovery covered by the protective order. We disagree and conclude that the district court did not abuse its discretion when entering the protective order.

A.

Parties may seek discovery of any relevant, non-privileged information. Fed. R. Civ. P. 26(b)(1). But district courts have discretion to limit the scope of discovery when the information sought is overbroad or unduly burdensome. Fed. R. Civ. P. 26(b)(2); see also Scales v. J.C. Bradford & Co,, 925 F.2d 901, 906 (6th Cir. 1991) (“Th[e] desire to allow broad discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant.”). The district court may limit the scope of discovery “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(iii). “Although a plaintiff should not be denied access to information necessary to establish her claim, neither may a plaintiff be permitted to go fishing and a trial court retains discretion to determine that a discovery request is too broad and oppressive.” Surles v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (internal quotation marks omitted & citations omitted).

To sustain a protective order under Rule 26(c), the moving party must show “good cause” for protection from one (or more) harms identified in Rule 26(c)(1)(A) “with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Serrano, 699 F.3d at 901 (citations omitted). The enumerated harms available to support a protective order are “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Good cause exists if “specific prejudice or harm will result” from the absence of a protective order. Father M. v. Various Tort Claimants (In re Roman Catholic Archbishop), 661 F.3d 417, 424 (9th Cir. 2011). A court must balance the “right to discovery with the need to prevent ‘fishing expeditions.’” Serrano, 699 F.3d at 902 (citations omitted).

B.

We conclude that the district court did not clearly err in its factual findings. After hearing testimony and admitting evidence, the district court found that the disclosures would cause an undue burden on and prejudice Defendants by subjecting them to the risk of harm, violence, and harassment and by making it difficult for them to obtain lethal-injection drugs. Plaintiffs do not dispute that the district court provided an accurate account of the record. Instead, they inveigh against the result arising from how the district court resolved testimony and weighed the absence of evidence from certain pertinent sources. True, the record lacks an affidavit from an Ohio manufacturer under duress or direct evidence from one of Ohio’s drug sources; still, the accumulation of evidence favors, a protective order. See Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960)(“It is horn-book law that direct evidence of a fact is not necessary. ‘Circumstantial evidence is not only sufficient, but may also be more certain, -satisfying and persuasive than direct evidence.’ ” (citation omitted)).

The district court scrutinized with care Ohio’s representations, probing whether Defendants (either directly or derivatively) suffered a burden or prejudice from identifying certain entities in association with lethal injection. For example, Defendants produced a privilege log on the eve of the evidentiary hearing, which identified persons or entities that have applied for statutory protection from disclosure. In re Ohio Execution Protocol Litig., 2015 WL 6446093, at *3, 2015 U.S. Dist. LEXIS 144926, at *26. The district .court was skeptical of how to weigh that evidence. Id. In addition, when assessing the witnesses themselves, the district court observed that the testimony was “largely speculative or conelusory, if not outright hyperbolic.” Id. at *2, 2015 U.S. Dist. LEXIS 144926 at *23. But, contrary to Plaintiffs’ contentions, the record persisted from there. Avoiding reflexive solicitude, the district court considered Defendants’ affirmative attestations of the need for protection. Without legitimate dispute, the district court was apprised of how-Ohio has been hobbled in its efforts to perform executions. Amid the stalled status of executions in Ohio, the district court observed, “[i]f execution by lethal injection is legal, and the Unitéd States Supreme Court has repeatedly said it is, then it follows that there must be some manner of carrying it out.” Id. at *9, 2015 U.S. Dist. LEXIS 144926, at *43. The district court referenced' “an email sent to an Oklahoma compounding pharmacy by a citizen,” [which] evinces an undeniable (and perhaps even faith-based) risk to pharmacies or com-pounders, including the personnel that work at such entities,” Id. at *3, 2015 U.S. Dist. LEXIS 144926, at *24-26. In view of witness testimony and other evidence about Ohio’s execution history, the district court found that “[i]f the question is whether a reasonable pharmacy owner or compounder would feel burdened by receiving such an email, the answer is likely if not certainly yes.” Id. at *3, 2015 U.S. Dist. LEXIS 144926, at *25. The district court further identified — as non-dispositive evidence — the existence of Ohio’s secrecy statute, finding “the same concerns that apparently led to the creation of the statute exist: the burden on and prejudice to the state that disclosure presents.” Id. at *7, 2015 U.S. Dist. LEXIS 144926, at *38.

Record evidence supports the district court’s finding of “a particular and specific demonstration of fact, as distinguished from stereotyped and conelusory statements,” of Defendants’ burden and prejudice in the absence of the protective order. See Serrano, 699 F.3d at 901. Although Plaintiffs disagree with where the findings of fact ultimately lean, they cannot dispute that the district court grounded the findings on competent evidence that supported Defendants’ arguments. Plaintiffs criticize the veracity of testimony and production of a vague privilege log, but fail to appreciate that that evidence was not the summation of the record. It is as if Plaintiffs seek to impose a summary-judgment evidentiary standard when Rule 26(c) merely requires the district court to weigh evidence against the movant’s burden. See id. at 902 (citations omitted). Although the district court did not segregate the burdens and pi'eju-dices among Defendants with stark precision, it correctly found corresponding burdens on the willingness to provide lethal-injection drugs to Ohio and the state actors’ ability to perform executions. The scope of the protective order addresses the identified burdens. To the extent Plaintiffs maintain that Defendants never asserted a burden or prejudice in carrying out executions, that contention is belied by the pragmatic reason Ohio moved for protection initially and the logical consequence of drug manufacturers ceasing to cooperate with Ohio. To ignore Defendants’ interest in a capability to perform executions is to ignore the elephant in the room. Although the district court did not mention the past occurrence of compromised attempts to perform lethal-injection executions, that omission has no bearing on the protective order. Plaintiffs are free to press that evidence on the merits and fail to substantiate how that evidence undermines the entry of the protective order.

C.

The district court did not commit legal error in entering the protective order upon a conclusion that Defendants had demonstrated good cause for protection. Plaintiffs conceded at oral argument that no binding case law exists in favor of their position. Although Plaintiffs later supplemented the record with cases supporting the need for discovery to support their claims, we have never sanctioned blind-faith efforts to unearth the supposition of wrongdoing. See Serrano, 699 F.3d at 902; Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d 189, 193 (1st Cir. 2001) (“We will not allow Signal to go on a ‘fishing expedition,’ with the mere ‘hope’ that it will obtain such information.”). That Ohio’s execution protocol is sui generis makes comparisons among other cases for abuse of discretion less apt. But if anything, cases under similar circumstances favor Defendants. See Phillips, 841 F.3d at 420 (“But no constitutional right exists to discover grievances or to litigate effectively once in court.”); In re Mo. Dep’t of Corr., 839 F.3d 732, 736 (8th Cir. 2016) (vacating original panel opinion, granting petition for rehearing, and granting petition for writ of mandamus because identity suppliers of lethal-injection drugs had no relevance to the inmates’ Eighth Amendment claim, disclosure of the supplier’s identity placed an undue burden on the state by preventing it from acquiring the drug for executions, and the inmates offered no assurances that active investigation of the supplier would not lead to further disclosure of identities); Jones v. Comm’r, Ga. Dep’t of Corr., 811 F.3d 1288, 1292-94 (11th Cir.) (death row inmate has no constitutional right to “know where, how, and by whom lethal injection drugs will be manufactured[,]” and no “due process right-of-access claim” to this information exists), cert. denied, — U.S. —, 136 S.Ct. 998,194 L.Ed.2d 16 (2016).

The district court did not err in concluding that Defendants established good cause for the protective order upon finding particularized harm to the drug manufacturers and Ohio’s capability to perform executions. As the district court’s findings support, but for the protective order, Defendants will suffer an undue burden and prejudice in effectuating Ohio’s execution protocol and practices. See Cooey v. Strickland, 604 F.3d 939, 946 (6th Cir. 2010) (“The state has a ‘significant interest in meting out a sentence of death in a timely fashion.’ ” (citation omitted)). That Defendants could have provided more evidence by offering execution team members behind a screen or affidavits from drug sources has no moment. Plaintiffs fail to cite case law compelling Defendants to submit for screened inquisition individuals for which they seek protection. To the extent Plaintiffs suggest that Ohio could follow its lethal-injection protocols by purchasing drugs on the open market and testing the drugs themselves, such a suggestion invites the type of judicial oversight over state proceedings that we are loath to indulge without a greater showing of need. Cf. Johnson v. Heffron, 88 F.3d 404, 407 (6th Cir. 1996) (“Judicial oversight over state institutions must, at some point, draw to a close.”). In addition, the district court did not err in rejecting Plaintiffs’ request to designate certain information subject to the protective order as “attorney’s eyes only.” Taken to an extreme, all protective orders could be circumvented by requesting that otherwise undiscovera-ble information be made available for use by counsel only.

The protective order does not prevent Plaintiffs from prosecuting their claims. The record is replete with even-handed analysis aimed at balancing the need for discovery with strictures to maintain appropriate protection for certain individuals and entities. See, e.g., In re Ohio Execution Protocol Litig., 2015 WL 6446093, at *7, 2015 U.S. Dist. LEXIS 144926, at *39 (“This Court is cognizant of the competing interests at issue here, both those presented by the claims asserted in this case and those overarching goals inherently underlying the instant dispute.”). The district court considered that the protective order, in shielding the identity of drug sources, may prevent Plaintiffs from knowing technician and execution team’s qualifications, the means by which Ohio obtained the lethal-injection drugs, and whether Ohio has complied with the manufacturing process (among other information). Yet Plaintiffs know the drugs to be used under the current protocol. And Plaintiffs do not dispute that — although they would' like to perform more exacting tests — those drugs are subject to compliance with and adherence to federal and state laws and regulations. Defendants emphasized at oral argument that Plaintiffs’ claims are legally implausible and that Phillips “buttresses” their dismissal. To the extent Plaintiffs’ claims fail as a matter of law without need for discovery, the district court should be afforded the opportunity to address their viability in the first instance. Defendants also intimated that they would be amenable to providing samples of the drugs for testing upon court order, which Plaintiffs have failed to pursue as of the date of oral argument. Although knowledge of the facilities and handlers of the drugs could inform Plaintiffs’ testing methodologies, the harm presented by identification of those intimately involved in an execution outweighs the speculative benefit of complete understanding of an industry already heavily regulated. Beyond cavil, this result does not federalize the Ohio secrecy law as a common-law privilege for immunity. The district court referenced the statute as an evidentiary data point for analysis only. And those parties can, of course, still be sued upon knowledge or information of malfeasance. No party defends this result as endorsing a new federal privilege, and we decline to comment further on the effect of secrecy statutes in other disputes.

Sensitive to the procedural-due-process concern that an inmate must have a fair opportunity to challenge unlawful methods of execution, the protective order does not stonewall Plaintiffs’ efforts to obtain relief. Should Plaintiffs seek to obtain samples of the drugs and their independent testing reveal irregularities (or if salient information from other sources comes to light), such events could generate cause for greater investigation and modification of the protective order. Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011) (rejecting due process arguments and noting that “[u]ntil the prisoners can put forth evidence that the Director has deviated from the approved protocol, they have no ‘non-frivolous’ Eighth Amendment claim to bring and thus suffer no ‘actual injury’ by being unable to bring such a claim”). Plaintiffs have not made a showing on appeal of probable value for additional investigation. See Wilkinson v. Austin, 545 U.S. 209, 221, 224-25, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (citation omitted).

Plaintiffs are correct that risk of litigation is not one of Rule 26(c)’s enumerated harms, but, as the district court concluded, undue burden is a harm that merits protection. See Fed. R. Civ. P. 26(c)(1). Although a discussion of litigation risk could be gleaned from the protective order and subsequent orders, there is no serious dispute that the district court did not rely on the omnipresence of litigation when entering the protective order. In re Ohio Execution Protocol Litig., 2015 WL 6446093, at *7, 2015 U.S. Dist. LEXIS 144926, at *38-39 (“Plaintiffs argue that Defendants are raising Rule 26(c) concerns by proxy, conflating burdens on and prejudice to non-party persons or entities with Defendants’ interests. This contention ignores that the burden is on Defendants and the prejudice is a loss of the ability to pursue, much less fulfill, a lawful duty.”).

Plaintiffs disclaim that they seek a ruling that the death penalty itself is unconstitutional. Just that they seek relief from an execution method sanctioned by the Supreme Court in Glossip under a protocol whose constitutionality we affirmed in Phillips. Certainly some jurists have questioned the constitutionality of the death penalty. Doubtless Ohio has been hindered in its efforts to execute inmates. Yet the law remains valid, and Ohio has an interest in following it through. Thompson v. Bell, 580 F.3d 423, 446 n.l (6th Cir. 2009) (“[T]he government has an essential interest in carrying out a lawfully imposed sentence.” (citations omitted)). Opprobrium alone cannot subvert a lawful practice.

IV.

The district court did not clearly err in its factual findings, and the district court correctly concluded that Defendants have established good cause for the protective order. We cannot detect an abuse of discretion on this record. We therefore AFFIRM because the district court did not abuse its discretion in entering the protective order.

DISSENT

JANE B. STRANCH, Circuit Judge,

dissenting.

This is another in a series of cases litigated against the backdrop of Ohio’s failure to properly carry out the death sentences of its prisoners, and includes a case in which I previously dissented. Phillips v. DeWine, 841 F.3d 405, 420-33 (6th Cir. 2016). In Phillips — a constitutional challenge to Ohio Revised Code §§ 2949.221-.222, Ohio’s lethal-injection secrecy statute — the majority dismissed the Plaintiffs’ claims for lack of standing and failure to state a claim. 841 F,3d at 410. In this suit, however, the Plaintiffs challenge not the secrecy statute itself, but the district court’s protective, order.

The Plaintiffs and Defendants agree that the Ohio secrecy statute does not control this federal discovery issue. The purposes and particulars of discovery under Rule 26, and the liberal treatment that such discovery must be accorded, govern this case. In discussing the broad scope of discovery authorized by the federal rules, the Supreme Court has explained that “[mjutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.” Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The question before us is whether the protective order issued by the district court satisfies the principles of discovery and the requirements of Rule 26.

The order extends broadly to cover any information “that identifies or reasonably would lead to the identification of any person or entity who participates in the acquisition or use of the specific drugs” and any persons or entities “who manufacture, compound, import, transport, distribute, supply, prescribe, prepare, administer, use, or test the compounding equipment or components, the active pharmaceutical ingredients, the execution protocol drugs or combination of drugs, the medical supplies, or the medical equipment used in carrying out any execution.” In re Ohio Execution Protocol Litigation, 2015 WL 6446093, at *9 (S.D. Ohio Oct. 26, 2015). The majority upholds the order’s issuance as in compliance with Rule 26 and, I think appropriately, leaves-interpretation of the specifics to the court below. I would not uphold issuance of the order because the record establishes that the district court failed to follow the proscriptions of discovery and the applicable federal rules, I therefore respectfully dissent.,

I. The Protective Order

To sustain a protective order under Rule 26(c)(1), the moving party must specify one of the harms listed in the rule, and must illustrate that enumerated harm “with a particular and specific demonstration of fact, as distinguished from-stereotyped and conclusory statements.” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)). The party must further show that the harm outweighs the need for the requested information. Id. The enumerated harms available to the Defendants are annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). “The burden of establishing good cause ... rests with the movant” who must “articulate specific facts showing ‘clearly defined and serious injur/ resulting from the discovery sought.” Nix v. Sword, 11 Fed.Appx. 498, 500 (6th Cir 2001) (quoting Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)); see also 8A Charles Alan Wright, Arthur R. Miller et al., Federal Practice and Procedure § 2036 (3d ed. 2016) (“To justify restricting discovery, the harassment or oppression should be unreasonable — ”).

The district court concluded that disclosing the identities of those entities and persons involved in the acquisition, of execution drugs and related materials would cause an undue burden on the Defendants by subjecting them to the risk of harm, violence, and harassment and by making it difficult for them to carry out executions. I find the justifications offered by Defendants to be too speculative to validate this protective order under Rule 26(c)(1).

A. The risk of harm, violence, and harassment

At a limited hearing, the district court heard testimony from four witnesses regarding the potential risk stemming from the requested disclosures. The Defendants’ security and threat assessment expert, J. Lawrence Cunningham, concluded that a “substantial risk of threats or harassment exists absent confidentiality,” 2015 WL 6446093, at *2, while the Plaintiffs expert in the same field, Thomas R. Parker, found that there was no substantial risk, id. The district court determined that the experts largely “cancelled one another out” and that the “assertions of burdens or prejudice connected to disclosure are largely speculative or conelusory, if not outright hyperbolic.” Id.

Cunningham’s testimony was undoubtedly speculative. His methods for determining whether there was a security risk consisted mainly of surfing the internet, and attempting to extrapolate the existence of potential threats in the death penalty arena by looking at advocacy regarding other issues: abortion, animal rights, and the morning-after pill. R. 548, PagelD 15136-37, 15167-68 (noting that while it “would be nice to have a direct threat,” he needed to be creative and look at every possibility). Cunningham himself stated that he was unaware of any known threat against anyone involved in implementation of the death penalty in Ohio, and unaware of threats against any compounding pharmacy that supplies Ohio. The Defendants offered no evidence that any Ohio pharmacy or pharmacist had ever been threatened, harmed, or harassed as a result of providing execution drugs. As Sister Helen Prejean pointed out in her testimony for the Plaintiffs, anti-death penalty advocates seek to preserve the lives of even those convicted of serious crimes — hardly a group of activists likely to revert to violence against pharmacy employees. R. 548, PagelD 15149 (“No violence against anyone because our whole point is to try to show that using violence to try to solve such problem doesn’t solve anything.”).

This leaves only one document relied on by the district court — a single email produced by the Defendants, sent by a citizen to a pharmacy in Oklahoma. The court extrapolated that a “reasonable pharmacy owner or compounder” would likely feel burdened by receiving such an email. 2015 WL 6446093, at *3. But that email is too attenuated from any specific, enumerated harm applicable to this case. The record reveals no evidence that any such party in Ohio received a message of this kind, or that any similar threat had ever been communicated. The Defendants’ evidence was simply insufficient to establish a harm as required under Rule 26(c)(1) with “a particular and specific demonstration of fact, as distinguished from stereotyped and con-elusory statements.” See Serrano, 699 F.3d at 901.

B. Ohio’s ability to continue carrying out executions

Without evidence of any actual threat to support issuing the order, the district court determined that Ohio would be unable to carry out executions unless it could maintain confidentiality regarding its sources for the execution drugs. The majority concludes that the Defendant’s ability to cany out executions is the reason Ohio moved for protection — the “elephant in the room.” Defendants, however, fail to show that they even raised this argument or that providing the disclosures would actually prevent executions.

Defendants never alleged that they would be unable to carry out executions; they discussed this issue only in the context of their unsuccessful attempt to invoke a privilege under the Ohio secrecy statute. Even if it had been raised, that would not relieve the Defendants of their burden to produce specific evidence of their need for a protective order under the facts of this case. References to the passage of Ohio’s secrecy statute and the reasons supporting its passage are insufficient to satisfy Defendants’ burden.

The Defendants sought to rely on then-production of a privilege log the night before the evidentiary hearing that identifies six persons or entities that had applied for statutory protection from disclosure under the Ohio secrecy statute. The district court found this to be informative of whether there were entities that sought anonymity but concluded that “some entities might apply for protection even if they might assist Ohio even if confidentiality were not obtained.” 2015 WL 6446093, at *3. As the district court recognized, a desire for secrecy does not show an inability to carry out executions without it. It does not satisfy Defendants’ burden merely to make the court aware of the fact that some entities prefer anonymity. There was simply no evidence in the record showing that compounding pharmacies would not provide execution drugs to Ohio absent their newly-granted anonymity, or that the risk of threats, intimidation or harassment would prevent suppliers from taking part in executions.

Indeed, there was no need for the district court’s “speculation” about the harm, 2015 WL 6446093, at *4, because courts have a number of methods to protect those involved during the taking of evidence. For example, execution team members could have provided the information necessary for the court to make an informed determination regarding the order by testifying behind a screen or by submitting sealed affidavits. It was not only unnecessary for the court to engage in “estimating probabilities,” id., it was also inappropriate — the burden of establishing good cause by proving specific facts rests on the Defendants. See Nix, 11 Fed.Appx. at 500. In sum, the information in this record was speculative and did not show a “clearly defined” injury, which is essential to satisfy the requirements of Rule 26(c)(1). See id.

C. The broad protective order prevents relevant and necessary discovery

The Plaintiffs argue that the protective order “effectively cuts off virtually all discovery, related to Ohio’s execution procedures” and that the information is relevant and necessary for their claims. The order, in shielding the identity of drug sources, prevents the Plaintiffs from knowing a vast array of information: technician and execution team’s qualifications, the means by which Ohio obtains the lethal-injection drugs, whether Ohio has complied with the manufacturing process, among other evidence. All in all, the protective order prevents the Plaintiffs from determining whether the Defendants are fulfilling their duty to provide humane and constitutional executions to inmates with fast-approaching execution dates.

The Defendants argue that performing their own tests on the drugs for identity and potency and reporting those results to the Plaintiffs is the “most reliable means of assessing their quality, reliability, and efficacy.” The Plaintiffs disagree, illustrating their concerns with a recent situation in which drugs that were sold as sterile and compliant with governing regulations by an independent lab, New England Compounding Center, were actually tainted and resulted in a meningitis outbreak that killed 16 people and injured 153, in Tennessee alone. See Timothy W. Martin, Tainted Drug Passed Lab Test, Wall Street Journal, Oct. 24, 2012; Kurt Eichenwald, Killer Pharmacy: Inside a Medical Mass Murder Case, Newsweek, April 16, 2015. Comparable concerns are raised by Ohio’s prior assurances concerning the drugs to be used to execute Dennis McGuire — a protocol that resulted in a 25-minute long botched execution. See Erica Goode, After a Prolonged Execution in Ohio, Questions Over 'Cruel and Unusual’, N.Y. Times, January 17, 2014, at A12.

The Plaintiffs argue that allowing Defendants to test their lethal-injection drugs is insufficient on its own because, among other reasons, that prevents Plaintiffs from testing for the presence of contaminants, from obtaining necessary information about the compounder’s processes, equipment, and practices, and from verifying the results of the secret tests. The Plaintiffs provide a lengthy list of the kinds of evidence the order will keep from them, including investigations into botched executions, non-compliance with written protocol, documentation related to execution drugs, information regarding execution team members and their qualifications, materials related to other individuals involved in executions, execution training records, and more. In sum, they do not have the information they need to ensure that the testing is adequate or that the executions will be carried out in a constitutional manner. The information barred by the order is, to say the least, highly relevant and necessary for their claims. Whatever burden there is on Defendants could have been reduced or eliminated with a narrow protective order limiting disclosure to counsel and experts.

II. Conclusion

The Defendants failed to show that they would suffer a specific, enumerated harm under Rule 26(c)(1), and certainly not one that could outweigh the Plaintiffs’ need for the withheld information. Because the record establishes that the district court’s order did not follow the principles governing federal discovery as well as the specific requirements of Rule 26, I respectfully dissent from the decision to uphold issuance of the order.

The parties have also presented a number of disputes about the scope and application of certain provisions of the order. Application issues include matters such as discovery that is now withheld but was previously routinely available to Plaintiffs. Disputes on scope include matters such as Plaintiffs’ objection that Defendants have expansively interpreted their rights under the order to refuse to provide information during the time frame before the drug protocol was amended on October 7, 2016. Simply put, a number of difficult disputes remain. Our remand entrusts the court below with interpreting the provisions and scope of the order and resolving those disputes.

      . The district court found the request "not well taken,” noting "confidential information has appeared in the media, despite this Court establishing protections to preclude such disclosure.” Since that order, Plaintiffs submitted a notice to the district court, representing that a journalist found the information through a public docket entry.

      . The parties do not brief the implications of this new protocol on the protective order. We assume without deciding that the new protocol falls within the scope of the protective order. This assumption is not binding on the district court, and the district court maintains discretion to modify the protective order as circumstances dictate.

      . To the extent Plaintiffs argue that the protective order is unnecessary on the basis that the record contains no evidence of actual drug manufacturers for the current protocol, this position extrapolates too much from Defendants’ representation that “[t]here was no evidence before the District Court that there were any ‘[Drug] Source Defendants’ who could be expected to seek their own protective order or who could be deemed functionally immunized.” Defendants have never admitted that such manufacturers do not exist, just that they are not identified in the record.

      . Plaintiffs maintain that the protective order prevents essential discovery for various causes of action (e.g., Ohio Corrupt Practices Act; Federal Controlled Substances Act; Federal Food, Drug, and Cosmetic Act; Racketeer Influenced and Corrupt Organizations Act).


author: PER CURIAM.

text:
    Rahim MCWILLIAMS, Plaintiff-Appellant, v. COOK COUNTY, ILLINOIS, et al., Defendants-Appellees.
    No. 15-1729
    United States Court of Appeals, Seventh Circuit.
    Submitted December 12, 2016
    Decided January 5, 2017

      Rahim McWilliams, Pro Se.
    Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.

       We have agreed unanimously to decide this case without oral argument because the appellant’s brief and the record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See Fed. R. App. P. 34(a)(2)(C).

   PER CURIAM.

Rahim McWilliams, who is now incarcerated in the Illinois Department of Corrections, broke a bone in his right hand after slipping and falling on a wet floor while detained at the Cook County jail in Chicago. In this action under 42 U.S.C. § 1983 and Illinois law, McWilliams claims that employees at both the county jail and the state Department of Corrections deliberately ignored his injury until after it was too late to prevent permanent disfigurement and pain. McWilliams also claims that his fall resulted from staff negligence at the county jail. His operative complaint identifies the intended defendants to include Cook County and unnamed physicians and guards, but the lawsuit never proceeded because the district court, after twice denying an application from McWil-liams to proceed in forma pauperis (“IFP”), dismissed the action for failure to pay the filing fee. We authorized McWil-liams to proceed with this appeal IFP, and we agree with him that the district court abused its discretion in denying leave to proceed IFP.

I. Background

For both of his IFP applications in the district court, McWilliams used a form provided by the clerk’s office for the Northern District of Illinois. That form includes a line, with checkboxes, constituí ing the applicant’s representation that the form is his or her “application □ to proceed without full prepayment of fees, or □ in support of my motion for appointment of counsel, or □ both.” The form, which says nothing about the need to file a separate motion if the assistance of counsel is desired, also asks prisoner applicants to provide an inmate identification number, the name of the applicant’s institution, and records from the applicant’s inmate trust account. McWilliams checked the third box, indicating that his application was in support of “both” leave to proceed IFP and appointment of counsel. He answered all of the questions on the form, except that he omitted his identification number and the name of the prison (both of which appear prominently on his complaint submitted contemporaneously with the IFP application, as well as in the trust officer’s certification incorporated into the IFP application). On the IFP form, where McWil-liams was asked if he or anyone living in the same residence had received “more than $200” from “other sources” not specifically listed on the form, he checked “yes” and explained that “Brittany Smith” had “received” a “donation” of $188. The district court denied IFP with the explanation, first, that McWilliams, by omitting his prisoner number and the name of the facility, had “failed to provide sufficient or accurate information.” The court also faulted McWilliams because, according to the court, he had “received $188 in gifts,” yet the statement from his prison trust fund “does not reflect any such income.” The district court did not acknowledge that McWilliams actually had said on his application that the $188 (an amount below the reporting threshold) was donated to Brittany Smith, not to him, and neither did the court explain its apparent belief that the $188, even if received in a lump sum by Smith, had been, or was required to be, deposited into McWilliams’s trust account. The court ordered McWilliams either to pay the filing fee or submit an “accurately and properly completed” application for IFP within the next month to avoid dismissal. In addition, the court said that it was denying McWilliams’s “motion for attorney assistance,” even though no such motion had been filed.

McWilliams then submitted a second IFP application, along with a first motion for appointment of counsel. This time he provided his inmate identification number and the name of the prison where he was incarcerated, but instead of checking “no” in response to every question about sources of funds, he said that he was not employed and wrote “N/A” across the remaining questions. On the IFP application the prison trust officer certified that McWilliams had $106.85 in his account and had received an average of $73.73 in the four months since his transfer to that facility. In his motion for appointment of counsel, McWilliams explained that he “has limited formal education of a fourth grader” and was dependent on help from other inmates. He also submitted a list of the law firms and legal-aid organizations he had asked to represent him. The district court denied the IFP application because McWilliams had written “N/A” instead of answering “no” to each specific question. The court then struck McWilliams’s motion for appointment of counsel as moot and dismissed the action.

II. Analysis

The district court erred. As we have noted, the information purportedly missing from McWilliams’s first IFP application was already in the court’s hands, not only on his contemporaneously filed complaint but also in the trust officer’s certification incorporated into the IFP application. And the court’s conclusion that the application was inaccurate simply because McWilliams’s trust account did not show a deposit of $188 is unpersuasive; even if that amount was donated to McWil-liams and not to Brittany Smith (as the form says), nothing suggests that the funds were received in a lump sum. More importantly, we are not aware of any requirement that all financial resources available to an inmate be deposited into his or her trust account. What matters is disclosure; a district court may dismiss a complaint if a plaintiffs allegation of poverty is untrue, 28 U.S.C. § 1915(e)(2)(A), but the court here did not point to anything untruthful about McWilliams’s submission. See Arzuaga v. Quiros, 781 F.3d 29, 34 (2d Cir. 2015) (noting that § 1915 “does not mandate that a prisoner proceeding IFP must disclose every deposit he or she receives in her prisoner trust account”). In this instance the plaintiff disclosed an amount below the $200 reporting threshold listed on the form — and for that candor he was penalized. As for McWil-liams’s second application, moreover, the meaning of “N/A” on the form could not have been unclear given his first application.

That McWilliams was indigent and qualified to proceed IFP is apparent from the two applications he submitted to the district court. This case should have proceeded nearly two years ago, and unless significant financial resources have become available to McWilliams since we granted his application to proceed IFP on appeal, the district court must grant IFP and move the case forward. On remand the district court should take up McWilliams’s requdst for counsel, since identifying the correct defendants through discovery will be a critical first step in the litigation.

III. Conclusion

The judgment is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.