Robert Eringer v. Principality of Monaco ( 2013 )

  •                                                                             FILED
                               NOT FOR PUBLICATION                               JUL 10 2013
                          UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                               FOR THE NINTH CIRCUIT                          U.S. COURT OF APPEALS
    ROBERT ERINGER,                                  No. 11-56570
                    Plaintiff - Appellant,           D.C. No. 2:10-cv-01803-GAF-E
                    Defendant - Appellee.
                         Appeal from the United States District Court
                            for the Central District of California
                          Gary A. Feess, District Judge, Presiding
                              Argued and Submitted June 5, 2013
                                    Pasadena, California
    Before:        TROTT and W. FLETCHER, Circuit Judges, and STEIN, District
           This is an employment dispute between Robert Eringer (“Eringer”) and the
    Principality of Monaco (“Monaco”). During his employment, Eringer provided a
    variety of predominantly intelligence-related services to Monaco and His Serene
    Highness Prince Albert II (“HSH”). In this lawsuit, Eringer alleges that he did not
                 This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
                 The Honorable Sidney H. Stein, District Judge for the U.S. District
    Court for the Southern District of New York, sitting by designation.
    receive payment for the first quarter of 2008, after which he terminated his
    employment. Monaco claims sovereign immunity. The district court found in
    favor of Monaco and dismissed for lack of subject matter jurisdiction. Eringer
    appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
          “The existence of sovereign immunity and subject matter jurisdiction under
    the Foreign Sovereign Immunities Act of 1976 (FSIA) are questions of law” that
    we review de novo. Park v. Shin, 
    313 F.3d 1138
    , 1141 (9th Cir. 2002). A foreign
    state is immune from suit unless the FSIA provides an exception. 28 U.S.C. §
    1604; Argentine Republic v. Amerada Hess Shipping Corp., 
    488 U.S. 428
    , 434-435
    (1989). Eringer contends that his employment falls within the FSIA’s commercial
    activities exception, 28 U.S.C. § 1605(a)(2).
          In determining whether an act is “commercial,” a term left undefined by the
    act, we look to whether a state is “exercis[ing] powers peculiar to sovereigns” or
    “exercis[ing] only those powers that can also be exercised by private citizens.”
    Republic of Argentina v. Weltover, Inc., 
    504 U.S. 607
    , 614 (1992) (internal
    quotation marks omitted). In Holden v. Canadian Consulate, 
    92 F.3d 918
    , 921
    (9th Cir. 1996), we relied on the FSIA’s legislative history and stated that
    “employment of diplomatic, civil service or military personnel is governmental and
    the employment of other personnel is commercial. Because private parties cannot
    hire diplomatic, civil service or military personnel, such hiring is necessarily
    governmental.” Eringer argues that we should read this language to mean that only
    the employment of diplomatic, civil service, or military personnel is non-
    commercial. Our later caselaw, however, does not support this reading of Holden.
    In Park, we considered the same legislative history as Holden and treated the list of
    commercial employment there as exemplary. 313 F.3d at 1145. To determine
    whether the employment of a domestic servant was commercial, we applied only
    the general rule that “acts by governmental entities are considered commercial in
    nature if the role of the sovereign is one that could be played by a private actor.”
    Id. (citing Weltover, 504 U.S. at 614-15).
          Applying this rule to Eringer’s employment, we affirm. Eringer’s complaint
    states that Monaco employed Eringer as the “Director of [Monaco Intelligence
    Services] and . . . its spymaster.” According to his own attorneys and affidavit,
    Eringer’s assignments included, inter alia, liaising with other intelligence agencies,
    investigating potential government appointments, investigating suspicions of
    corruption and other illegal activity in Monaco, and protecting HSH from improper
    foreign influence. This employment is not the type of employment private parties
    can undertake.