Methane Awareness Resource Group v. Chao ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 21, 2009
No. 08-60660
Charles R. Fulbruge III
Clerk
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:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
No. 08-60660
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
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 in Mine Safety 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
No. 08-60660
The respondents’ motion to transfer the petition for review to the United
States Court of Appeals for the District of Columbia is GRANTED.
3