Manuel Kevork Terenkian; Pentonville Developers, Ltd.; Marblearch Trading, Ltd. v. the Republic of Iraq

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL KEVORK TERENKIAN;
PENTONVILLE DEVELOPERS, LTD.;
MARBLEARCH TRADING, LTD.,
Plaintiffs-Appellees,
v.
THE REPUBLIC OF IRAQ and THE
REPUBLIC OF IRAQ, by and through
State Oil Marketing Organization,
Defendants-Appellants.
No. 10-56708
D.C. No.
2:03-cv-05485-
CBM-SH
ORDER
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted
December 6, 2011—Pasadena, California
Filed January 3, 2013
Before: John T. Noonan, Ronald M. Gould,
and Sandra S. Ikuta, Circuit Judges.
Order;
Dissent by Judge Noonan

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TERENKIAN V. REPUBLIC OF IRAQ 2
This summary constitutes no part of the opinion of the court. It has *
been prepared by court staff for the convenience of the reader.
SUMMARY*
Transfer of Venue
The court denied a petition for rehearing en banc in a case
in which the panel reversed the district court’s order
(1) denying a motion to dismiss an action against the
Republic of Iraq for breach of contracts to buy oil under the
auspices of the United Nations Oil for Food Program and
(2) transferring venue to the District Court for the District of
Columbia.
Judge Noonan dissented from the denial of the petition for
rehearing en banc. He wrote that the panel’s decision
(1) treats as timely an appeal made to a court, the D.C.
Circuit, lacking jurisdiction to hear the appeal, and (2) departs
from well-settled authority by splitting a whole case into two.
COUNSEL
Edward L. Powers (argued), Zukerman Gore Brandeis &
Crossman, LLP, New York, New York; Susan L. Hoffman
and Robert A. Brundage, Bingham McCutchen, LLP, Los
Angeles, California, for Appellant.
Melinda W. Ebelhar (argued), Edward C. Hsu, Edward D.
Vaisbort, and G. David Rubin, Litchfield Cavo LLP,
Pasadena, California; Alan Gura, Gura & Possessky, PLLC,
Alexandria, Virginia, for Appellees.

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TERENKIAN V. REPUBLIC OF IRAQ 3
ORDER
A majority of the panel has voted to deny Appellees’
Petition for Rehearing En Banc. The petition for rehearing en
banc was circulated to the judges of the court, and no judge
requested a vote for en banc consideration.
The petition for rehearing en banc is DENIED.
NOONAN, Circuit Judge, dissenting from denial of the
petition for rehearing:
I. The Transfer Of The Whole Case
April 9, 2010. The District Court for the Central District
of California filed an order denying Iraq’s motion to dismiss
for lack of subject matter jurisdiction due to sovereign
immunity and denying Iraq’s motion to dismiss for failure to
arbitrate. The Order also found that the Central District of
California was not the proper venue for this action and
transferred it to the District Court for the District of
Columbia.
April 13, 2010. The Order was entered on the docket for
the Central District of California. The Order stated:
The United States District Court for the
Central District of California is not the proper
venue. Moreover, a substantial part of the
events or omissions did not take place in New
York. Thus, the proper venue is the United
States District Court for the District of
Columbia.

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TERENKIAN V. REPUBLIC OF IRAQ 4
The Court transfers venue to the United States
District for the District of Columbia.
Iraq appealed this order to the D.C. Circuit.
II. The Law
According to the treatise generally accepted as
authoritative, a transfer of a case from one circuit to another
is treated as a transfer of the whole case. Wright and Miller
write:
When a motion for transfer under 28 U.S.C.
Section 1404(a) has been granted, and the
papers lodged with the clerk of the transferee
court, it is well settled that the transferor
court—and the appellate court that has
jurisdiction over it—loses all jurisdiction over
the case and may not proceed further with
regard to it.
Wright & Miller, 15 Fed. Prac. & Proc. Juris 3846 (3d ed).
The April 2012 Supplement to Wright and Miller cites
more cases applying the well-settled rule.
Only two exceptions to the “well-settled” rule are noted:
(1) an appeal has been filed in the appellate
court of the transferor before the transfer takes
place;
(2) the transfer is to a court lacking
jurisdiction to hear the case. Id.

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TERENKIAN V. REPUBLIC OF IRAQ 5
Neither of these exceptions apply here.
Why should this court in this case break from the well-
settled rule? The reasons offered for doing so are not
persuasive. I set out in italics these unpersuasive points.
(1) The losing party in the transferor district court would
have had to appeal quickly. Promptness does not strike me
as a penalty. If the rule is not followed, a real problem is
created by the creation of two jurisdictions dealing with one
case. In any event, this argument is not relevant here where
the appeal of the transfer was not timely because the appeal
was made to the wrong court.
(2) The Fourth Circuit provides contrary precedent. Wye
Oak v. Republic of Iraq, 666 F.3d 805 (4th Cir. 2011) rests its
authority on TechnoSteel, LLC v. Beers Construc. Co.,
271 F.3d 151 (4th Cir. 2001). There, the district court used
its discretionary authority to transfer a case to a district court
in the Eleventh Circuit. Under its law, the Eleventh Circuit
would have had no authority to review the case. TechnoSteel
v. Beers, 271 F.3d at 156. The case was appealable only to
the Fourth Circuit. Id. Appellate review would have been
altogether unavailable if the transfer was effective. Such a
result would have been fundamentally unfair.
In Wye Oak, the district court transferred the case to the
D.C. Circuit. The D.C. Circuit stayed the transfer. The
appellant then appealed to the circuit court embracing the
transferor district court, the Fourth Circuit, which then
accepted the appeal. Wye Oak speaks specifically of an
“appealable, and timely appealed, decision[] of [a] district
court.” 666 F.3d at 209. The appeal was timely, so

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TERENKIAN V. REPUBLIC OF IRAQ 6
distinguishing Wye Oak from our case. In our case the appeal
was to the wrong court. The difference is not a small detail.
Neither Wye Oak nor TechnoSteel is relevant here. Here,
Iraq had the opportunity to appeal to the circuit embracing the
transferor court, the Ninth Circuit. It did not do so.
Two additional but unpersuasive points may be
considered. First, the rule in question is not strictly
jurisdictional. Therefore, as the Supreme Court stated in
Bowles v. Russell, 551 U.S. 205, 212 (2007), the rule can be
relaxed by the Supreme Court. The difficulty with this
argument is that the Supreme Court has not relaxed the rule
in this case.
Second, 28 U.S.C. § 2107 gives Iraq 30 days to appeal.
But Iraq appealed the order to the wrong court. An appeal to
the transferee court is not an appeal to the transferor court.
Iraq’s appeal to the wrong court did not give jurisdiction to
this court.
Conclusion. The decision of our court treats as timely an
appeal made to a court lacking jurisdiction to hear the appeal.
The decision of our court is unsupported by Fourth
Circuit authority.
Departing from well-settled and unchallenged authority,
the decision of our court splits a whole case into two.
Solomon challenged two litigants before him to split the
whole baby each claimed. When one refused, Solomon knew
that she must be the mother. This ancient story comes to
mind as the Republic of Iraq seeks to split a whole case in

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TERENKIAN V. REPUBLIC OF IRAQ 7
two. One doesn’t need to be a Solomon to know that a single
lawsuit should not be split in half.

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