                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MANUEL KEVORK TERENKIAN ;                No. 10-56708
PENTONVILLE DEVELOPERS, LTD .;
MARBLEARCH TRADING , LTD .,                 D.C. No.
              Plaintiffs-Appellees,      2:03-cv-05485-
                                            CBM-SH
                v.

THE REPUBLIC OF IRAQ and THE                ORDER
REPUBLIC OF IRAQ , by and through
State Oil Marketing Organization,
             Defendants-Appellants.


     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
2               TERENKIAN V . REPUBLIC OF IRAQ

                           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.

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             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.
4             TERENKIAN V . REPUBLIC OF IRAQ

       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.
              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
6             TERENKIAN V . REPUBLIC OF IRAQ

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
             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.
