* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 22, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-60510

_____________________

In Re: GULF PUBLISHING COMPANY, INC.,

Petitioner.

_________________________________________________________________

Petition for Writ of Mandamus to the

United States District Court

for the Southern District of Mississippi

USDC No. 3:03-CR-120-ALL

_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM: *

Gulf Publishing Company, Inc. has requested a writ of mandamus

to require the district judge to unseal the court file in the case

of United States of America versus Paul S. Minor; John H.

Whitfield; Oliver E. Diaz, Jr.; and Walter W. Teel

, Case No. 3:30-

CR-00120-HTW-JCS-ALL, presently pending before Chief Judge Henry T.

Wingate in the United States District Court for the Southern

District of Mississippi. On June 13, 2005, the district court

judge advised the Clerk’s Office of this court, via telephone, that

an order would be entered by the end of that week. At 3:05 p.m.

yesterday, June 21, the district judge’s secretary called the

Clerk’s Office of this court and she made the representation that

he would rule by Friday, June 24.2

The sealed documents at issue were filed in a criminal case

alleging judicial bribery, brought by the United States of America

against a Mississippi Supreme Court justice, two former Mississippi

s tate court judges, and a trial lawyer from Biloxi, Mississip pi.

The petitioner, Gulf Publishing Company, publishes the Sun Herald

newspaper in Gulfport, Mississippi. On April 1, 2005, Gulf

Publishing filed an Emergency Motion to Unseal the Court File, to

Obtain Transcripts of Oral Arguments on Motions to Seal the Court

File, to Object to Future Closure of Court File or Courtroom, and

to Obtain Notice of Closure of the Court File or Courtroo m. The

defendants filed a response in opposition to the motion to unseal

on April 15, and Gulf Publishing filed a reply on April 20.

The district court conducted a hearing on the emergency motion

to unseal on April 26, 2005. At the conclusion of the hearing, the

court stated that it would render a decision on the motion on the

following Friday, April 29, 2005. On April 29, the court stated

that it would make its decision the following Monday, May 2, 2005.

As of today, June 22, no ruling has been made.

The trial began on June 6. Our review of the docket sheet

shows that on June 14, the district court entered an order

continuing the trial until June 20. The trial apparently resumed

on June 20, and is expected to last for several more weeks. Gulf

Publishing asserts that, both before and after the trial commenced

on June 6, the district judge has continued to announce his3

intention to decide the emergency motion to unseal the court file,

but has not issued a ruling.

In its petition for writ of mandamus, Gulf Publishing contends

that the district court has violated the First Amendment, federal

common law, and its own local rule by not e ntering any order

articulating the basis, if any, for sealing the court file. Gulf

Publishing asserts that, because the jury has been selected, there

is no longer any risk that disclosure of the sealed documents will

prevent the selection of a fair and impartial jury, and no reason

to hide the court file from the public and the press.

Gulf Publishing seeks a w rit of mandamus requiring the

district court to immediately unseal the entire court file and not

to seal any portion thereof again, and to order that Gulf

Publishing receive a copy of any transcript of oral argument on any

motions to close the courtroom or to seal the court file in the

district court.

A writ of mandamus is an extraordinary remedy that “is

appropriate only when the trial court has exceeded its jurisdiction

or ha s declined to exercise it, or when the trial court has so

clearly and indisputably abused its discretion as to compel prompt

intervention by the appellate court.” I n re: United States

, 397

F.3d 274, 282 (5th Cir. 2005) (internal quotation marks and

citations omitted). Three requirements must be satisfied “before

a writ will issue: (1) the party seeking issuance of the writ

[must] have no other adequate means to attain the relief he4

desires; (2) the petitioner must satisfy the burden of showing that

[her] right to issuance of the writ is clear and indisputable; and

(3) even if the first two prerequisites have been met, the issuing

court, in the exercise of its discretion, must be satisfied that

the writ is appropriate under the circu mstances.” I d

. (internal

quotation marks and citations omitted).

The district court has clearly and indisputably abused its

discretion by failing to make any rulin g on Gulf Publishing’s

motion, despite having made repeated representations -- including

to the office of the Clerk of this court -- that a ruling was

forthcoming. Gulf Publishing has no other adequate means to attain

the relief it seeks. Although Gulf Publishing has not shown that

it is entitled to the specific relief requested in its petition for

writ of mandamus, it has met its burden of showing a clear and

indisputable right to have the district court judge make a ruling

on its motion. Over a month has passed since the district court

indicated that it would rule on the motio n. The jury has been

selected, and the trial is well underway. Despite the four-day

continuance of the trial last week, the ruling promised by the

district judge by the end of last week has still not been entered.

In the exercise of our discretion, we are satisfied that the

issuance of a w rit of mandamus is appropriate under these

circumstances.

This matter, however, is held in abeyance trusting the

district judge’s representation that he will ad dress the matters5

referred to in the petition for writ of mandamus by Friday, June

24. If he fails to act, the court will further consider the

petition.

SO ORDERED.