Second Circuit – Sovereign immunity: Hyunhuy Nam v. Permanent Misson of the Republic of Korea to the United Nations

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United States Court of Appeals for the Second Circuit

Sovereign immunity — Commercial activity exception — Analysis

Hyunhuy Nam v. Permanent Misson of the Republic of Korea to the United Nations

23-229

Judges Livingston, Wesley, and Chin

Background: At issue on appeals is whether wage-and-hour and employment discrimination claims against a foreign state’s mission to the United Nations brought by a former chauffeur were not barred by the Foreign Sovereign Immunities Act because the chauffeur’s employment fell within the commercial activity exception to sovereign immunity.

Ruling: The Second Circuit vacated and remanded. The court held that the district court erred when it accepted the allegations of the complaint as a basis for finding subject matter jurisdiction when factual disputes existed, such as the scope of the plaintiff’s employment. The Second Circuit further held that the court also relied heavily on the earlier motion to dismiss when the parties relitigated the issue of sovereign immunity on summary judgment. Also, there was sufficient evidence in the record to have warranted explicit fact finding and, if necessary, an evidentiary hearing to address the issue of commercial activity and sovereign immunity.

Yongjin Bae, of Hang & Associates, for the plaintiff-appellee; Joshua S. Lim, Nicholas J. DuBois, and Sean Kwak, of Kim, Cho & Lim, for the defendant-appellant.