* Pursuant to 5 TH 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH CIR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 ClerkNo. 08-60660

R. 47.5.4.

1 Some language in the government’s briefing seems tosuggest 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 providesjurisdiction 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 in MineSafety and Health Administration Program 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 o f this “final rule,” before the United States Court ofAppeals for the District ofColumbia. By statute, the first filed petition controls where the record should be f iled 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. 4No. 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.