# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 2020 Decided June 26, 2020

No. 19

- 7027

L EAGUE OF W OMEN V OTERS OF THE U NITED S TATES , ET AL .,

A PPELLEES

v.

B RIAN D. N EWBY , IN HIS CAPACITY AS THE E XECUTIVE D IRECTOR OF THE U NITED S TATES E LECTION A SSISTANCE C OMMISSION AND U NITED S TATES E LECTION A SSISTANCE

C OMMISSION , A PPELLEES

E AGLE F ORUM E DUCATION & L EGAL D EFENSE F UND ,

A PPELLANT

Appeal from the United States District Court for the District of C olumbia (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.2

Before: T ATEL , G ARLAND , and M ILLETT , Circuit Judges

. Opinion for the Court filed by Circuit Judge T ATEL

.

T ATEL , Circuit Judge : Pursuant to Federal Rule of Civil Procedure 24(b) and the common

- law right of access

, third parties may intervene in case s 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)

. S uch third parties , however, may seek disclosure only of

“ public records

, ” which

, in the context of court proceedings, are called “

judicial records

. ” Nixon v. Warner Comm unicatio ns, Inc. , 435 U.S. 589, 597 (1978)

. Here, a third

party organization moved to intervene to seek disclosure of sealed materials that the federal government claims are privilege d . The district court denied the motion bec ause, 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 opin ion in this case, League of Women Voters of the United States v. Newby , 838 F.3d 1 (D.C. Cir. 2016)

. S et forth below are the few details need ed to understand th e issue before

us

.
Federal law directs every state to “ accept and use the mail voter registration application form prescribed by the [ Election3

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 )

. T he mail

- in registration f

orm , 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)

. T he 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 eligi bility 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 c itizenship to each state ’ s instructions on the

. . . [] ‘ Federal Form ’ []

. ” Kobach v. U.S. Election Assistance Commissio n , 772 F.3d 1183 , 1187

– 88 (10th Cir. 2014)

. The Commission “ concluded that the additional language was
unnecessary and denied their requests. ” Id. at 11 88

. But following the appointment of a new Commission Executive4

Director

, Kansas re submitted 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 t he 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 ’ request s

.

P laintiffs then filed a motion for a preliminary injunction, which t he 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 1 2

. Setting the stage for the appeal now before us , Kansas, i n the course of litigating the preliminary

- injunction motion in district court

, moved to depose Commissioner Christy McCormick regarding the Commission ’ s earlier decision to5 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 privilege d

. Although t he 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 Vo ters , 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 in to several briefs and exhibits

. Because t he district court h as yet to rule on the government ’ s assertions of privilege

, the unredacted versions of th o se 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
y ears later, t he 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 omi tted)

. Eagle Forum filed a timely notice of appeal

. P laintiffs and intervenors in the underlying case have declined to participate.6

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 Indep end e nt Transmission Sys tem Operator, Inc. v. FERC , 388 F.3d 903, 908 (D.C. Cir. 2004)

. This court has never expressly address ed its jurisdiction to review a district court order denying a motion
to permis sive ly interven e for the limited purpose of unsealing judicial records

. Cf. National Children ’ s Center , 146 F.3d at 104 6 ( 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 , t hat doctrine permits review of “ decisions that, although they do not end the litigation

, . . . are conclusive,

. . . [and] resolve important questions separat e 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)

, w e 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. C ir. 1985), we held that an order denying disclosure of documents also qualified as a n appealable collateral order. Id. at 1330.

The reasoning in those cases applies equally to the order denying intervention here. A s there, the district court order here is “ separable from, and collateral to ” the rights at issue in the7 underlying case . That is, t he underlying case does not concern public

- access rights

, and “ the party challenging the order was not a party to the underlying

. . . proceeding

. ” I d. In fac t , 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 participat e in the case. Hubbard , 650 F.2d at 314 (internal quotation marks omitted). T he district court ’ s order therefore qualifies as an appealable collateral order.

III

.

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

— includin g 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 104 5. 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 pr ocess

. ’” 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

. S ee Government Br. 3 ( stating

“ the Issue ” as “ Whether the district court correctly denied8 Eagle Forum ’ s mot ion

. . . 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. ” ) . R esolution of that issue

, moreover, turns on just one case : our court ’ s decision in Met L ife, Inc. v. Financial Stability Oversight Council , 865 F.3d 661 (D.C. Cir. 2017)

.

In MetLife

, the district court denied a n intervenor ’ s request to unseal redacted portions of briefs and append ices

. See i d. at 66 4

. Defending the district court ’ s decision on appeal, t he original parties argu ed that the intervenor had no common

- law right to the redacted materials . According to the m , 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

. ” I d. at 666

. Rejecting that argument

, we explain ed 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. T he 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 rec ord

. ” 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 to9 plaintiffs ’ preliminary

- injunction motion contain materials from the McCo rmick deposition, and the district court, “ [u]pon consideration of the parties ’ pleadings and oral arguments

, ” den ied the motion. League of Women Voters , 195 F. Supp. 3d at 83

. Then, w hen plaintiffs appealed that decision to this court, Kansas filed a brief that contain ed materials from the McCormick deposition, a nd that too led to a judicial decision

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

- injunc tion motion, s ee League of Women Voters

, 838 F.3d at 4

. And as in Met L ife , 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, t he 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

- injunc tion proceedings, neither the district court nor this court r eached that issue. But that is essentially the same argument that was made and rejected in Met L ife

— 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 dec i sionmaking process even if the court ’ s opinion never quotes or cites it

. ” I

d. 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 d etermin es it need not reach a briefed issue hardly mean s the issue played no role in the “ decisionmaking
process

. ” Id.

Under MetLife , then, Eagle Forum may intervene for the10 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 claim s , justif y continued sealing. See 650 F.2d at 32 3

– 2 4 (discussing privacy interests

— e.g., “ a privilege against evidentiary use ”

— “ to be weigh ed against ” public access)

.
I V

. For the foregoing reasons, we reverse the order of the district court and remand for further proceedings consistent with this opinion.

So ordered.