Commercial Litigation and Arbitration

Circuit Has Jurisdiction to Hear Immediately Appealable Issue — E.g., FSIA, Arbitration or Injunction Rulings — Despite Fact That District Court Simultaneously Transferred Case Outside Circuit for Litigation

Wye Oak Tech., Inc. v. Rep. of Iraq, 2011 U.S. App. LEXIS 25945 (4th Cir. Dec. 29, 2011):

In Technosteel, [LLC v. Beers Constr. Co., 271 F.3d 151 (4th Cir. 2001),] we held, "under any view of the jurisdictional limitations imposed by [28 U.S.C] § 1294(1) and its interplay with a [28 U.S.C] § 1404(a) transfer, precedent simply does not dictate the holding that we lose jurisdiction to review immediately appealable, and timely appealed, decisions of our district court . . . simply because the district court simultaneously chose to transfer the balance of the case for litigation elsewhere." 271 F.3d at 157. We went on to reason that because the district court's decision in that case was immediately appealable "without need for any action by the parties or the court," the decision was "effectively severed from the balance of the case" and so did not travel with the rest of the case to the transferee district but instead remained appealable in the transferor circuit. Id. at 159, 160.

Although Technosteel involved an appeal of an order denying a petition to compel arbitration, we and the other circuits to have considered the issue believe its reasoning applies more broadly.

Footnote 3. See, e.g., Matrix Grp. Ltd., Inc. v. Rawlings Sporting Goods Co., 378 F.3d 29, 32 (1st Cir. 2004) (appeal of order denying injunction); Jones v. Info Cure Corp., 310 F.3d 529, 533-34 (7th Cir. 2002) (same).

The district court's decision denying Iraq the protections of foreign sovereign immunity, like a denial of a petition to compel arbitration, is immediately appealable without need for any action by the parties or the court. The district court's decision was thus severed from the remainder of the case that traveled to the transferee court and remains appealable in this circuit pursuant to § 1294(1).

Footnote 5. Although the case is no longer within our circuit, presumably our decision will become law of the case in the transferee district and circuit. See 18B Wright, Miller, & Cooper, supra, at § 4478.4 ("Special situations . . . may bring the same case successively to different courts of appeals. . . . In all of these circumstances, an appellate court tends to defer to the earlier appellate decision in much the same way as it would defer to its own earlier decision."); see also Hill v. Henderson, 195 F.3d 671, 678 (D.C. Cir. 1999) (recognizing that "a decision of a court of coordinate status is entitled to be considered 'law of the case'").

Footnote 6. As in Technosteel, we are further persuaded that appellate jurisdiction is appropriate here due to the anomalous results that would ensue were we to hold otherwise. See 271 F.3d at 160-61. Because the district court that issued the decision lies in our circuit, § 1294(1) would prevent the transferee circuit from hearing this appeal. See id. at 156 ("TechnoSteel's petition to compel arbitration was immediately appealable . . . and ... it was immediately appealable only to us, see 28 U.S.C § 1294(1)." (emphasis added)); Hill, 195 F.3d at 675 (suggesting that, in these circumstances, pursuant to § 1294(1), immediately appealable orders must be reviewed by the transferor circuit). Consequently, we could not transfer the appeal to the D.C. Circuit because, pursuant to 28 U.S.C. § 1631, an appeal may only be transferred to a circuit court in which the appeal could originally have been filed. This appeal would thus have to be dismissed, leaving the decision of the transferor district court intact and operating as law of the case. In turn, the law of the case doctrine would constrain the transferee district court to adhere to the transferor district court's decision unless the transferee district court finds that the transferor district court's rulings were "clearly erroneous and would work a manifest injustice." Arizona v. California, 460 U.S. 605, 618 n.8 (1983).

It is also far from clear that the D.C. Circuit, on appeal, could directly review the underlying decision from the transferor district court, rather than merely reviewing the application of the law of the case doctrine by its district court. Cf. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1518 (10th Cir. 1991) (noting that although "a court of appeals in the transferee circuit lacks jurisdiction to review the judgments of [a] district court in the transferor circuit . . . nothing . . . precludes the parties from arguing or the transferee circuit from reviewing whether the transferee district court correctly applied the law of the case in the transferred action"). This chain of events could result in the district court's decision escaping de novo review entirely. Such an outcome is particularly inappropriate in these circumstances, given the importance of foreign sovereign immunity and considerations of respect and comity that follow it. Cf. Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000) ("[T]o defer the question [of foreign sovereign immunity] is to 'frustrate the significance and benefit of entitlement to immunity from suit.'" (quoting Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 449 (D.C. Cir. 1990)).

Accordingly, we hold that this court has jurisdiction to hear Iraq's appeal.

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