In action by household employee against Korean consular officer over low wages and unduly long working hours, Ninth Circuit finds that dealings with household employee were not in exercise of consular or sovereign functions, and thus are not immune under either Vienna Convention or FSIA
Tae Sook Park, a Chinese citizen, worked as a domestic servant for Bong Kil Shin, the Deputy Consul General of the Korean Consulate in San Francisco. Park began working for Shin in 1996 when they were stationed in China, and came with him to the U.S. in 1999 upon Shin's reassignment. Park took care of the three children, cooked, cleaned, and did other household duties. Park also fixed the meals when Shin entertained important official guests at his home.
Park sued the Shins in a California federal court, alleging that she earned less than the U.S. minimum wage, that the Shins refused to take her to the hospital when she was sick, and that the Shins had taken away her passport. The district court dismissed the case based on consular immunity according to the Vienna Convention on Consular Relations (Convention) (April 24, 1963, 21 U.S.T. 77; T.I.A.S. 6820; 596 U.N.T.S. 261). The U.S. Court of Appeals for the Ninth Circuit reverses and remands.
Article 43(1) of the Convention provides that "consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions." Shin certainly qualifies as a consular officer, in the Court's view, but his alleged activities that gave rise to Park's lawsuit were not "acts performed in the exercise of consular functions."
Article 5 of the Convention sets forth 12 specific consular functions, and also contains a "catch-all" provision. It includes "any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or ... which are referred to in the international agreements in force between the sending State and the receiving State." See Article 5(m).
Shin argued that he could not adequately carry out his official functions if he also had to cook, clean and take care of the children. In the Court's view, however, this is not enough to convert the hiring and supervision of a domestic servant into a "consular function."
The Court also notes (1) that Park held an "A-3" visa, which is for personal employees of consular officers; and (2) that Shin, not the Korean government, paid Park's salary. Even her cooking for official guests would have been merely incidental to her regular job as Shin's personal servant.
Shin additionally claimed that he qualified as a "foreign state" and thus enjoyed immunity under the Foreign Sovereign Immunities Act (FSIA) [28 U.S.C. Sections 1604, 1605-1607]. The Court agrees that the law may sometimes treat individual government employees as agents of "foreign states" under the FSIA, but only if the individuals act in their official capacities as employees of a foreign sovereign.
Here, Shin was not representing the State of Korea when he hired Park but was acting as a private person hiring a domestic servant to be paid out of his personal funds. Moreover, Park does not complain about any Korean government policy but only about Shin's personal decisions about her wages and working conditions. An adverse judgment against Shin would in no way interfere with the sovereignty or policy-making power of the Korean state. Therefore, the Court concludes, Shin could not have been acting within the scope of his official duties in his domestic dealings with Park.
Even if he were, the courts should treat his acts as within the "commercial activity" exception set forth in 28 U.S.C. Section 1605(a)(2). In deciding whether certain acts amount to "commercial activity," courts look to the nature of the activity in question rather than to its purpose. In general, acts by government agencies are "commercial" in nature if the sovereign's role is one that a private person or company could play in the market place. Conversely, an activity is "sovereign" if it is one that only a sovereign state could perform.
Citation: Park v. Shin, 313 F.3d 1138 (9th Cir. 2002).
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