 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.
                               2
    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 third-
party 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
                               4
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
                               5
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.
                                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 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
                               7
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
                                 8
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
                                 9
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
                             10
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.
