* Pursuant to 5TH CIR. 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 5TH CIR.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60660

METHANE AWARENESS RESOURCE GROUP 

Petitioner 

v. 

ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR; NATIONAL 

INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH; MINE

SAFETY & HEALTH REVIEW ADMINISTRATION; MICHAEL O LEAVITT

UNITED STATES HEALTH AND HUMAN SERVICES; UNITED STATES

DEPARTMENT OF LABOR AND MICHAEL LEAVITT, SECRETARY OF

HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES; 

Respondents 

UNITED STEEL, PAPER AND FORESTRY, RUBBER MANUFACTURING, 

ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS

INTERNATIONAL UNION 

Intervenor 

Order Granting Transfer of Petition for Review

of an Order of the Federal Mine Safety & Health Administration

(73 Fed Reg 29058-60)

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

January 21, 2009

Charles R. Fulbruge III

Clerk
No. 08-60660

R. 47.5.4.

1 Some language in the government’s briefing seems to suggest that it does not consider

there in fact to be a “final rule” capable of challenge, and we do not judge that question. We

assume there was a final rule here that provides jurisdiction for a petition for review in the

U.S. circuit courts, pursuant to 30 U.S.C. § 811(d). As both the petition before this court and

the petition before the D.C. Circuit state, the “final rule” was published in 73 Fed. Reg. 29058,

29058-60 (May 20, 2008) and inMineSafety and Health AdministrationProgram Policy Letter

No. P08-IV-1. 

2 See 28 U.S.C. § 2112(a).

3 Cargill, Inc. v. U.S., 173 F.3d 323 (5th Cir. 1999); Akzo-Nobel Inc. v. U.S., 2001 WL

34772206 (2001).

4 Kennecott Greens Creek Mining Co. v. Mine Safety & Health Administration, 476

F.3d 946 (D.C. Cir. 2007).

2

On July 17, 2008, Methane Awareness Resource Group petitioned this

court for review of a rule promulgated by some of the respondents on May 20,

2008.1 However, on July 11, 2008, another petitioner, the National Mining

Association, had petitioned for review of this “final rule,” before the United

States Court of Appeals for the District of Columbia. By statute, the first filed

petition controls where the record should be filed in such cases, and other

circuits in which such petitions are later brought should transfer the proceedings

before them to the court where the record has been filed.2 We comply with this

statutory instruction and transfer the petition to the D.C. Circuit. The

petitioner’s efforts to resist our transfer do not avail, because they cast no doubt

on the fact that the “same order” is at issue before this court and before the D.C.

Circuit, and because they err in their assertion that this court’s remand

authority is here implicated. The prior appeals before this court in this general

arena bear only tenuous relation to the instant petition for review,3 and not

nearly as close a relation as a recent petition decided by the D.C. Circuit.4
No. 08-60660

3

The respondents’ motion to transfer the petition for review to the United

States Court of Appeals for the District of Columbia is GRANTED.