Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

MEMORANDUM^** 

Appellants D'Aquino, Hosford and Brooker bring this appeal from an order of the United States District Court for the District of Nevada partially denying them access to the court record of one Johnnie Tinker. The portion of the record they seek to inspect contains information pertinent to the assistance provided by Tinker to the government, which allegedly contributed to appellants' arrest. We affirm.

Analogizing to cases where the media, though not parties to a case, seek review of closure orders, the government asserts that appellants lack standing to prosecute this appeal. In the media context, it is true, this court has denied standing to non-parties on appeal. See, e.g., United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir. 1982); United States v. Sherman, 581 F.2d 1358, 1360 (9th Cir. 1978). However, we recognize standing to such non-parties to seek review by petition for writ of mandamus. See, e.g., Seattle Times v. United States District Court for W.D. of Washington, 845 F.2d 1513, 1515 (9th Cir. 1988); United States v. Schlette, 842 F.2d 1574, 1576 (9th Cir.), amended, 854 F.2d 359 (9th Cir. 1988); Brooklier, 685 F.2d at 1165; Sherman, 581 F.2d at 1360.

In this circuit, "we may, where appropriate, treat appeals as petitions for mandamus." Organization for Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 541 (9th Cir. 1987); see also Unified Sewerage Agency, Etc. v. Jelco Inc., 646 F.2d 1339, 1343 (9th Cir. 1981). Applying the test set forth in Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir. 1977), we decide to treat this appeal as a petition for mandamus and thus find that appellants have standing to challenge the district court's order.

After careful review, we decline to issue the writ. In doing so, we underestimate neither appellants' first amendment right of access to trial records, see, e.g., CBS, Inc. v. United States Dist. Court, 765 F.2d 823, 825 (9th Cir. 1985); Associated Press, Inc. v. United States District Court, 705 F.2d 1143, 1145 (9th Cir. 1983), nor their undisputed common law "right to inspect ... judicial records and documents." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978); see also Schlette, 842 F.2d at 1582; Valley Broadcasting Co. v. United States District Court, 798 F.2d 1289, 1293 (9th Cir. 1986).

However, we have found nothing in the sealed record that might be relevant to appellants' case. See United States v. Hickey, 767 F.2d 705, 706-08 (10th Cir.), cert. denied sub nom Hopkinson v. United States, 474 U.S. 1022 (1985). We cannot conclude that the district court abused its discretion in denying access to the confidential documents.

Conclusion

Having construed this appeal as a petition for mandamus, we conclude that the ruling of the district court should not be disturbed. The petition for a writ of mandamus is DENIED.