United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 2020 Decided June 26, 2020

No. 19-7027

LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, ET AL.,

APPELLEES

v.

BRIAN D. NEWBY, IN HIS CAPACITY AS THE EXECUTIVE 

DIRECTOR OF THE UNITED STATES ELECTION ASSISTANCE 

COMMISSION AND UNITED STATES ELECTION ASSISTANCE 

COMMISSION,

APPELLEES

EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00236)

Lawrence J. Joseph argued the cause and filed the briefs 

for appellant. 

Caroline Lopez, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With her on the brief were Mark 

B. Stern and Daniel Tenny, Attorneys.
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Before: TATEL, GARLAND, and MILLETT, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Pursuant to Federal Rule of Civil 

Procedure 24(b) and the common-law right of access, third 

parties may intervene in cases for the “limited purpose of 

seeking access to materials that have been shielded from public 

view either by seal or by a protective order.” EEOC v. National 

Children’s Center, Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998). 

Such third parties, however, may seek disclosure only of 

“public records,” which, in the context of court proceedings, 

are called “judicial records.” Nixon v. Warner 

Communications, Inc., 435 U.S. 589, 597 (1978). Here, a thirdparty organization moved to intervene to seek disclosure of 

sealed materials that the federal government claims are 

privileged. The district court denied the motion because, in its 

view, the organization’s interests were adequately represented 

by preexisting parties and none of the materials sought 

qualified as judicial records. For the reasons set forth below, 

we reverse.

I.

Despite the caption—League of Women Voters of the 

United States v. Newby—this appeal is a dispute between Eagle 

Forum Education & Legal Defense Fund, the aspiring 

intervenor, and the federal government, which opposes its 

intervention. A full description of the background appears in 

an earlier opinion in this case, League of Women Voters of the 

United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016). Set forth 

below are the few details needed to understand the issue before 

us.

Federal law directs every state to “accept and use the mail 

voter registration application form prescribed by the [Election 
3

Assistance Commission],” a four-member independent 

commission tasked with monitoring and disseminating 

information regarding the administration of Federal elections. 

52 U.S.C. § 20505(a)(1); see id. §§ 20508(a)(2), 20921, 

20923(a)(1) (establishing the Election Assistance Commission 

and assigning to it responsibility over the mail-in form). The 

mail-in registration form, or “Federal Form,” must, among 

other things, “specif[y] each eligibility requirement (including 

citizenship)” and “require[] the signature of the applicant, 

under penalty of perjury,” “attest[ing] that the applicant meets 

each such requirement.” Id. § 20508(b)(2)(A)–(C). The 

Commission includes additional registration details for each 

state as an attachment to the Form, including where to mail the 

application and “information regarding the state’s specific 

voter eligibility and registration requirements.” 11 C.F.R. 

§ 9428.3(b). Although states may, with the Commission’s 

approval, supplement the registration requirements listed on 

the Federal Form, they “may require only such identifying 

information . . . as is necessary to enable the appropriate State 

election official to assess the eligibility of the applicant and to 

administer voter registration and other parts of the election 

process.” 52 U.S.C. § 20508(b)(1).

In the last decade, several states, including Alabama, 

Arizona, Georgia, and Kansas, have “enacted laws requiring 

that anybody who wishes to register to vote must provide 

documentary proof of United States citizenship.” League of 

Women Voters, 838 F.3d at 5. Two of those states, Arizona and 

Kansas, petitioned the Commission to “add language requiring 

documentary proof of citizenship to each state’s instructions on 

the . . . []‘Federal Form’[].” Kobach v. U.S. Election Assistance 

Commission, 772 F.3d 1183, 1187–88 (10th Cir. 2014). The 

Commission “concluded that the additional language was 

unnecessary and denied their requests.” Id. at 1188. But 

following the appointment of a new Commission Executive 
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Director, Kansas resubmitted its request to have its instructions 

on the Federal Form amended to include the requirement of

documentary proof-of-citizenship. The new Executive 

Director, Brian Newby, approved Kansas’s request, along with 

similar ones by Georgia and Alabama.

Several voting-rights organizations, including the League 

of Women Voters, along with a number of Kansas residents,

brought the underlying lawsuit here, arguing, among other 

things, that Newby acted outside the scope of his authority by 

unilaterally changing the Commission’s policy on 

documentary proof-of-citizenship requirements. They also 

argued that even if the Executive Director had such authority,

the decision violated the statute by failing to consider whether

such requirements were “necessary.” 52 U.S.C. § 20508(b)(1).

When the United States Department of Justice refused to 

defend Newby’s actions, the district court permitted Kansas 

and the Public Interest Legal Foundation, an organization 

focused on election-law issues, to intervene to defend Newby’s 

approval of the States’ requests.

Plaintiffs then filed a motion for a preliminary injunction, 

which the district court denied on the ground that they failed to 

demonstrate irreparable harm. See League of Women Voters of 

the United States v. Newby, 195 F. Supp. 3d 80, 94–96 (D.D.C.

2016). Our court reversed, finding that plaintiffs had 

established irreparable harm and were likely to succeed on the 

merits of at least one claim—that “Newby never made the 

necessity finding required by [the statute].” League of Women 

Voters, 838 F.3d at 12.

Setting the stage for the appeal now before us, Kansas, in 

the course of litigating the preliminary-injunction motion in 

district court, moved to depose Commissioner Christy 

McCormick regarding the Commission’s earlier decision to 
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deny the States’ requests to amend the Federal Form. The 

federal government opposed the motion, arguing, among other 

things, that much of McCormick’s testimony would be 

privileged. Although the district court permitted each side to 

depose McCormick, it “ordered that no party or individual may 

publicly disclose[] on this court’s docket . . . any documents or 

information disclosed by [McCormick] . . . for which a party 

asserts a claim of privilege, until after the court has ruled on 

any privilege dispute.” Order, League of Women Voters, No. 

16-cv-236, (D.D.C. Mar. 1, 2016), Dkt. No. 42. The 

McCormick deposition proceeded, and Kansas and the Public 

Interest Legal Foundation inserted information derived from 

the deposition into several briefs and exhibits. Because the 

district court has yet to rule on the government’s assertions of 

privilege, the unredacted versions of those documents remain 

under seal.

In March 2017, Eagle Forum, a nonprofit organization that 

advocates for the use of documentary proof-of-citizenship in 

voter registration, moved under Federal Rule of Civil 

Procedure 24(b) to permissively intervene for the limited 

purpose of gaining access to the sealed briefs and exhibits 

containing materials related to McCormick’s testimony. Two 

years later, the district court denied Eagle Forum’s motion in a 

Minute Order. “[E]xercis[ing]” its “discretion to deny . . . 

request[s] for permissive intervention,” the court explained that 

“existing parties [could] more than adequately represent [Eagle 

Forum’s] interests,” and that Eagle Forum operated from the 

“incorrect premise that [the] documents” it sought “are 

currently judicial records.” Minute Order, League of Women 

Voters, No. 16-cv-236 (D.D.C. Mar. 28, 2019) (internal 

quotation marks omitted).

Eagle Forum filed a timely notice of appeal. Plaintiffs and 

intervenors in the underlying case have declined to participate.
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II.

Although both parties assure us of our appellate 

jurisdiction to review the district court’s order, “we have an

independent obligation to be certain.” Midwest Independent

Transmission System Operator, Inc. v. FERC, 388 F.3d 903, 

908 (D.C. Cir. 2004). This court has never expressly addressed

its jurisdiction to review a district court order denying a motion 

to permissively intervene for the limited purpose of unsealing 

judicial records. Cf. National Children’s Center, 146 F.3d at 

1046 (reviewing the denial of such a motion to intervene 

without discussing the court’s appellate jurisdiction). We are 

certain, however, that the collateral-order doctrine enables us 

to review such actions. As relevant here, that doctrine permits 

review of “decisions that, although they do not end the 

litigation, . . . are conclusive, . . . [and] resolve important 

questions separate from the merits.” Swint v. Chambers County 

Commission, 514 U.S. 35, 42 (1995).

Our court has applied the collateral-order doctrine in 

related contexts. For example, in United States v. Hubbard, 

650 F.2d 293 (D.C. Cir. 1980), we held that a district court 

order to unseal was appealable because it was “‘separable from, 

and collateral to’ the rights of the parties to the . . . 

proceedings” and “as a practical matter, ‘finally determine[d]’

the claim” given that granting “public access to the documents 

at issue [would] to some extent irreparably damage the interests 

asserted.” Id. at 314 (quoting Cohen v. Beneficial Industrial 

Loan Corp., 337 U.S. 541, 546 (1949)). And in In re Reporters 

Committee for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 

1985), we held that an order denying disclosure of documents 

also qualified as an appealable collateral order. Id. at 1330.

The reasoning in those cases applies equally to the order 

denying intervention here. As there, the district court order here 

is “separable from, and collateral to” the rights at issue in the 
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underlying case. That is, the underlying case does not concern 

public-access rights, and “the party challenging the order was 

not a party to the underlying . . . proceeding.” Id. In fact, the 

parties continued to litigate during the pendency of the motion 

to intervene, after the order denying that motion was entered, 

and during the course of this appeal. Moreover, the district 

court’s order “finally determine[d]” the issue of whether Eagle 

Forum could participate in the case. Hubbard, 650 F.2d at 314 

(internal quotation marks omitted). The district court’s order

therefore qualifies as an appealable collateral order.

III.

“[E]very circuit court that has considered the question”—

including this one—“has come to the conclusion that 

nonparties may permissively intervene for the purpose of 

challenging confidentiality orders.” National Children’s 

Center, 146 F.3d at 1045. Once in the lawsuit, the intervenor 

may assert the common-law right of public access “to records 

of [the] judicial proceeding.” Hubbard, 650 F.2d at 314. But

“not all documents filed with courts are judicial records,” and 

“whether something is a judicial record depends on ‘the role it 

plays in the adjudicatory process.’” SEC v. American 

International Group, 712 F.3d 1, 3 (D.C. Cir. 2013) (quoting 

United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 

1997)). We review a district court’s determination of whether 

materials qualify as judicial records de novo. El-Sayegh, 131 

F.3d at 160.

Here, the government does not defend the district court’s 

first reason for denying the motion to intervene—that Eagle 

Forum’s interests are adequately represented by existing 

parties. Accordingly, this appeal turns on the district court’s 

second reason for denying the motion—that the materials in 

question are not judicial records. See Government Br. 3 (stating 

“the Issue” as “Whether the district court correctly denied 
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Eagle Forum’s motion . . . on the ground that the sealed 

portions of the filings have not become judicial records.”); Oral 

Arg. Rec. 26:54–58 (“There’s just one issue . . . . [The two 

issues] collapse in this particular posture.”). Resolution of that 

issue, moreover, turns on just one case: our court’s decision in

MetLife, Inc. v. Financial Stability Oversight Council, 865 F.3d 

661 (D.C. Cir. 2017).

In MetLife, the district court denied an intervenor’s request 

to unseal redacted portions of briefs and appendices. See id. at 

664. Defending the district court’s decision on appeal, the 

original parties argued that the intervenor had no common-law 

right to the redacted materials. According to them, because the 

district court never “quote[d] or cite[d] any of those sealed 

(redacted) parts,” the documents had “not play[ed] a sufficient 

role in the adjudicatory process to qualify as judicial records.”

Id. at 666.

Rejecting that argument, we explained that “[a] brief (or 

part of a brief) can affect a court’s decisionmaking process 

even if the court’s opinion never quotes or cites it.” Id. at 667. 

The briefs in question, we pointed out, had been “filed before 

the district court’s decision and were intended to influence it,”

and “we ha[d] no doubt that,” in coming to its decision, “the 

[district] court read the briefs, including the parts it did not cite 

or quote.” Id. at 668. After all, “[w]ithout access to the sealed 

materials, it is impossible to know which parts of those 

materials persuaded the [district] court and which failed to do 

so (and why).” Id. MetLife thus stands for the proposition that 

every part of every brief filed to influence a judicial decision 

qualifies as a “judicial record.” Although there may be an 

exception for material inserted into a court filing in bad faith, 

that is plainly not the case here.

MetLife controls here. The briefs filed in opposition to 
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plaintiffs’ preliminary-injunction motion contain materials 

from the McCormick deposition, and the district court, “[u]pon 

consideration of the parties’ pleadings and oral arguments,”

denied the motion. League of Women Voters, 195 F. Supp. 3d 

at 83. Then, when plaintiffs appealed that decision to this court, 

Kansas filed a brief that contained materials from the 

McCormick deposition, and that too led to a judicial decision—

this court’s reversal of the district court’s denial of plaintiffs’

preliminary-injunction motion, see League of Women Voters, 

838 F.3d at 4. And as in MetLife, we have “no doubt” that both 

the district court and this court “read the briefs, including the 

parts [they] did not cite or quote.” 865 F.3d at 668. Under 

MetLife, then, the district court was mistaken in saying that no

“documents subject to [the government’s] privilege claims are 

currently ‘judicial records.’” Minute Order, supra.

The government makes much of the fact that the sealed 

materials pertain to just one legal issue—whether Newby acted 

outside the scope of the Executive Director’s authority by 

unilaterally reversing the Commission’s policy—and that in 

the preliminary-injunction proceedings, neither the district 

court nor this court reached that issue. But that is essentially 

the same argument that was made and rejected in MetLife—

that the judicial “opinion . . . did not quote or cite any of th[e] 

sealed (redacted) parts” of the briefs. 865 F.3d at 666. As we 

explained, a “brief (or part of a brief) can affect a court’s 

decisionmaking process even if the court’s opinion never 

quotes or cites it.” Id. at 667. That is no less true where, as here,

a court disposes of a motion or appeal in such a way as to avoid

reaching one or more of the presented issues. The fact that a 

court ultimately determines it need not reach a briefed issue 

hardly means the issue played no role in the “decisionmaking 

process.” Id.

Under MetLife, then, Eagle Forum may intervene for the 
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limited purpose of seeking to unseal references to the 

McCormick deposition. In so ruling, we emphasize that this 

does not mean that those materials must be unsealed. Under our

decision in Hubbard, the district court will still need to 

determine whether countervailing interests, including the 

government’s privilege claims, justify continued sealing. See 

650 F.2d at 323–24 (discussing privacy interests—e.g., “a 

privilege against evidentiary use”—“to be weighed against”

public access).

IV.

For the foregoing reasons, we reverse the order of the 

district court and remand for further proceedings consistent 

with this opinion.

So ordered.