Park v. Shin, 01-16805.

• Citation: 313 F.3d 1138
• Decision Date: 17 December 2002
• Docket Number: No. 01-16805.,01-16805.
• Parties: Tae Sook PARK, Plaintiff-Appellant, v. Bong Kil SHIN; Mee Sook Shin, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

313 F.3d 1138

Tae Sook PARK, Plaintiff-Appellant, v. Bong Kil SHIN; Mee Sook Shin, Defendants-Appellees.

No. 01-16805.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2002.

Filed December 17, 2002.

COPYRIGHT MATERIAL OMITTED

Monty Agarwal, McCutchen, Doyle, Brown & Enersen, LLP, San Francisco, CA, for the plaintiff-appellant.

Marguerite E. Meade, El Cerrito, CA, for the defendants-appellees.

Appeal from the United States District Court, for the Northern District of California, Maxine M. Chesney, District Judge, Presiding. D.C. No. CV-01-01800-MMC.

Before HAWKINS, GRABER, and TALLMAN, Circuit Judges.

OPINION

GRABER, Circuit Judge.

Plaintiff Tae Sook Park brought this action against Bong Kil Shin, the Deputy Consul General of the Korean Consulate in San Francisco, and his wife, Mee Sook Shin. Plaintiff alleges several employment-related claims arising from her tenure as the Shins' domestic servant. The district court ruled that Defendants are entitled to immunity under the Vienna Convention on Consular Relations (Vienna Convention) and dismissed the action. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Bong Kil Shin is the Deputy Consul General of the Republic of Korea Consulate General in San Francisco, and Defendant Mee Sook Shin is his wife. Plaintiff Tae Sook Park is a Chinese national who began working as a domestic servant for Defendants in 1996, while Mr. Shin was stationed at the Korean Embassy in China. In February 1999, Mr. Shin was transferred to the Korean Consulate in San Francisco. Mr. Shin obtained for Plaintiff a visa to allow her to come to the United States and to continue working for Defendants.

Plaintiff worked in the United States as a domestic servant for Defendants from February 28, 1999, to October 3, 2000. She resided in Defendants' home in San Mateo County. Plaintiff's work included cooking, cleaning, performing other household duties, and taking care of Defendants' three children. Plaintiff's duties also included preparing and serving food when Mr. Shin entertained guests on behalf of the Korean Consulate at the Shins' home. The Korean Consulate in San Francisco does not have an area in which to entertain guests and, therefore, it was customary for the Shins to entertain at their home. The guests included consuls and diplomats from other countries, members of the Korean business community, and church leaders.

On May 9, 2001, Plaintiff filed this action against Defendants, alleging federal and state statutory claims, as well as common law claims, all arising from her employment by the Shins. She alleges that, during the course of her employment with Defendants, she was not paid the minimum wage or overtime pay; that on numerous occasions Defendants did not take her to the hospital when she was ill; and that Defendants confiscated her passport.

The district court held that Defendants were entitled to consular immunity under the Vienna Convention. It then granted Defendants' motion to dismiss for lack of subject matter jurisdiction. Plaintiff brings this timely appeal.

STANDARD OF REVIEW

We review de novo the district court's conclusion that consular immunity deprives it of subject matter jurisdiction over Plaintiff's claims. Joseph v. Office of Consulate Gen. of Nig., 830 F.2d 1018, 1027 (9th Cir.1987). The existence of sovereign immunity and subject matter jurisdiction under the Foreign Sovereign Immunities Act of 1976 (FSIA) are questions of law that, likewise, we review de novo. Corzo v. Banco Cent. de Reserva del Peru, 243 F.3d 519, 522 (9th Cir.2001).

DISCUSSION

Defendants argue that the district court was barred from exercising jurisdiction over Plaintiff's claims for two reasons. First, they assert that they are entitled to consular immunity pursuant to the Vienna Convention. Second, they argue that they are entitled to sovereign immunity pursuant to the FSIA. We address each claim in turn.

A. Vienna Convention

Article 43(1) of the Vienna Convention provides that "[c]onsular 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." Vienna Convention on Consular Relations, Apr. 24, 1963, art. 43(1), 21 U.S.T. 77, 104. As Deputy Consul of the Korean Consulate, Mr. Shin qualifies as a "consular officer" within the meaning of Article 43. See id. at 80 (art. 1(1)(d)); id. at 86 (art. 9(1)). Thus, he argues that he is entitled to consular immunity because the acts giving rise to Plaintiff's action were "acts performed in the exercise of consular functions." Id. at 104 (art. 43(1)).

We apply a two-part test when determining whether an act was "performed in the exercise of consular functions." Under the first step, we must decide whether the functions asserted are "legitimate `consular functions.'" Gerritsen v. Consulado Gen. De Mex., 989 F.2d 340, 346 & n. 8 (9th Cir.1993) (Gerritsen II); see also Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1517 (9th Cir. 1987) (Gerritsen I) (holding that, if "the acts alleged in the complaint are not consular functions ..., these acts are not protected by consular immunity"). If the functions asserted are legitimate consular functions, we next must decide whether the acts for which the consular officer seeks immunity were "`performed in the exercise of the consular functions' in question." Gerritsen II, 989 F.2d at 346.

In order to answer the first of these questions, we must consider the scope of "legitimate consular functions" under the Vienna Convention. Article 5 sets forth 12 specific consular functions. 21 U.S.T. at 82-84 (art. 5(a)-(l)). In addition, article 5 contains a "catch-all" provision defining consular functions to include "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." Id. at 85 (art. 5(m)); Gerritsen II, 989 F.2d at 345-46.

Mr. Shin does not assert that the acts alleged by Plaintiff were performed in exercise of any of the 12 enumerated functions but, instead, relies on the catch-all provision. He asserts that, because Plaintiff provided services such as cooking and serving in connection with official Consulate events held at the Shins' home, his hiring and supervision of Plaintiff was a legitimate consular function.

In support, Mr. Shin cites Ford v. Clement, 834 F.Supp. 72 (S.D.N.Y.1993). In that case, a Vice Consul of the Republic of Panama sued the Consul General, who allegedly had orchestrated a campaign of harassment to force her out of the Consulate in New York. Id. at 73-74. The district court concluded that the Consul General's acts were performed in the exercise of the legitimate consular function of "managing and supervising the consular staff," because management and supervision of the consular staff was "fundamental to the efficient execution of all of the other consulate functions enumerated by the Vienna Convention." Id. at 77, 75. Mr. Shin makes an analogous argument here, namely, that his hiring and supervision of Plaintiff was fundamental to his ability to entertain official guests in his home.

Mr. Shin also argues that he could not fulfill his other functions as a consular officer as effectively if he were required to cook, clean, take care of his children, and perform the other services that Plaintiff provided for the Shin family. Although that may be true, this fact alone is insufficient to make the hiring and supervision of Plaintiff a consular function. Under this theory, any personal service (from yard work to car repair) would become a consular function because, otherwise, the consular officer would have to perform it. A direct, not an indirect, benefit to consular functions is required.¹

Plaintiff was hired as the Shin family's personal domestic servant. Any labor that she performed on behalf of the Consulate was incidental to her employment as a personal servant. Several facts support this conclusion.

First, Mr. Shin obtained an A-3 visa for Plaintiff. Such visas are issued only for personal employees of consular officers. See 8 U.S.C. § 1101(a)(15)(A)(iii); 8 C.F.R. § 214.1(a)(2).² Had she been an employee of the Consulate itself, Plaintiff would have been issued an A-2 visa. See Agreement Regarding the Issuance of Nonimmigrant Visas, Mar. 28, 1968, U.S.Republic of Korea, 19 U.S.T. 4789, 4803 (amended Aug. 1, 1982) (providing that A-2 visas are to be granted to foreign government employees who are not ambassadors, public ministers, career diplomatic or consular officers, or members of their immediate families); see also 8 U.S.C. § 1101(a)(15)(A)(ii); 8 C.F.R. § 214.1(a)(2).

Second, although the Republic of Korea paid the monthly rent on the Shins' home and reimbursed the Shins for expenses incurred when entertaining guests at their home, it was not responsible for paying Plaintiff's monthly salary, medical expenses, or travel to the United States. Instead, the Shins paid Plaintiff for her services out of their own funds.

Finally, Plaintiff allegedly worked 15 hours a day on weekdays and 13 hours a day on weekends. Because the Shins entertained visitors only "several times a month," the bulk of Plaintiff's time was not spent performing work related to official consular functions. Instead, she spent most of her time caring for the Shins' children and cooking and cleaning for the Shins themselves.

Thus, Plaintiff's work for the Consulate was merely incidental to her regular employment as the Shin family's personal domestic servant and, accordingly, Mr. Shin's hiring and supervision of her was not a consular function. The acts alleged by Plaintiff therefore were not "performed in the exercise of consular functions" for purposes of the Vienna Convention, and Mr. Shin...