23-229

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

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

August Term 2023 

(Submitted: February 23, 2024 Decided: September 11, 2024) 

Docket No. 23-229

 

HYUNHUY NAM, 

 Plaintiff-Appellee, 

v.

PERMANENT MISSION OF THE REPUBLIC OF KOREA TO THE UNITED NATIONS, 

 Defendant-Appellant. 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

 

Before: LIVINGSTON, Chief Judge, and WESLEY and CHIN, Circuit Judges. 

 

Appeal from an opinion and order of the United States District 

Court for the Southern District of New York (Rochon, J.), holding, on summary 

judgment, that wage-and-hour and employment discrimination claims against a
2 

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. 

VACATED AND REMANDED. 

 

Yongjin Bae, Hang & Associates, PLLC, Flushing, NY, 

for Plaintiff-Appellee.

Joshua S. Lim, Nicholas J. DuBois, Sean Kwak, Kim, Cho 

& Lim, LLC, Palisades Park, NJ, Joseph Barbiere, 

Cole Schotz, P.C., Hackensack, NJ, and Eric S. 

Latzer, Cole Schotz P.C., New York, NY, for 

Defendant-Appellant. 

 

CHIN, Circuit Judge: 

 In this case, plaintiff-appellee Hyunhuy Nam alleges that his rights 

under federal, state, and city wage-and-hour and anti-discrimination laws were 

violated by defendant-appellant Permanent Mission of the Republic of Korea to 

the United Nations (the "Mission"). Nam was formerly employed by the Mission 

as a chauffeur, and the principal issue presented on appeal is whether the district 
3 

court (Rochon, J.) erred by holding, on summary judgment, that the Mission was 

not protected by the Foreign Sovereign Immunities Act (the "FSIA"), 28 U.S.C. 

§ 1602 et seq., because Nam's employment fell within the "commercial activity" 

exception to sovereign immunity.

 For the reasons that follow, we vacate the district court's decision 

and remand for further proceedings.

BACKGROUND

I. The Facts1

In June 2016, Nam, a citizen of the Republic of Korea and permanent 

resident of the United States, began his job as a chauffeur with the Mission, 

South Korea's foreign consulate located in Manhattan. He found the job through 

an online job advertisement that the Mission posted on a website called "Hey 

Korean." App'x at 563. The website allows parties -- whether private or 

otherwise -- to post job openings. Nam was interviewed and hired by the 

1 We construe the evidence in the light most favorable to the Mission. As discussed 

further below, the parties filed cross-motions for summary judgment and the district 

court denied the Mission's motion and granted Nam's cross-motion, awarding Nam 

damages and interest. Accordingly, the Mission was the non-moving party on Nam's 

cross-motion. See pages 21-23 infra. Certain facts alleged by Nam with respect to the 

merits, and apparently not contested by the Mission for purposes of this appeal, are also 

set forth below.
4 

Minister at the time as well as "the person who was in charge at the time." Id. at 

339-40. Nam became the assigned driver for four different Ministers at the 

Mission. He was "non-diplomatic staff," but his responsibilities included 

"administration of 'diplomatic protocol'" as well. Id. at 242. Nam also promised 

"not [to] engage in any act of any kind which may be contrary to the national 

interest of the Republic of Korea." Id. at 676. In fact, Nam acknowledged that 

when the Minister attended international events, Nam "faithfully complied with 

every ceremonial order and protocols required for each event," and that it was 

important for him to do so because he was "part of the Mission." Id. at 310-11.

As part of the hiring process, the Mission required Nam to obtain a 

"security clearance," id. at 827, sign an agreement each year certifying that he 

would not divulge classified information, and agree to submit to a polygraph test 

if necessary.2 Nam pledged in his employment contract, for example, that any 

knowledge he acquired in the course of his job as a driver for the Mission "is 

deemed nationally classified information of the Republic of Korea" and that Nam

would "not divulge it to anyone in any manner." Id. at 362. Nam's contract 

prohibited him from disclosing such information under penalty of "punishment 

2 Nam testified that in his four years of working for the Mission, he was never actually 

subject to a polygraph test. 
5 

under the laws of the Republic of Korea." Id. at 408. Nam was required to 

submit to a "high level security clearance" rather than an ordinary background 

check. Id. at 343-44.3 Nam was required to disclose detailed personal 

information, such as his religious history, assets, history of overseas travels, his 

post during his military service in Korea, and information about family members 

and in-laws -- information not generally required of applicants for employment 

during regular background checks. And with the possible exception of a 

designated driver for the Ambassador of the Mission who may have received a 

similarly heightened background check, Nam was "the unique non-diplomatic 

personnel who had to go through the security clearance as well as every year had 

to submit the pledge to renew it." Id. at 346.

As Jinho Jo, Counselor for the Mission, testified at his deposition:

So Mr. Nam was doing the task of supporting the foreign affairs 

Minister, such as Minister Chung, who required high level security, 

and since Minister Chung is someone who is categorized as a high 

3 The difference between a security clearance and a background check is significant. A 

security clearance seeks to protect "interests of the national security," Dep't of Navy v. 

Egan, 484 U.S. 518, 528 (1988) (internal quotation marks and citation omitted), which 

includes "the protection of classified information," id. at 529. A background check, 

however, is performed by most employers to "confirm that a[] [prospective employee] is 

who they say they are, uncover any potential conflicts or a combination of both." 

Kimberlee Leonard & Rob Watts, What is a Background Check, Forbes Advisor (July 9, 

2024, 7:41am), https://www.forbes.com/advisor/business/ 

background-check/. 
6 

level officer and Mr. Nam was the head. Mr. Nam had no other 

choice but to come to know where Minister Chung is going, with 

whom he is meeting with and what kind of conversation he's having 

with that other person, in what location. Since that was what he was 

doing and because Mr. Nam had this special characteristic of a job 

that he would be able to find out information such as top secret 

information, classified information in the process of working with 

Minister Chung. So therefore, Mr. Nam needed a separate security 

clearance from us. From the time of the employment, Mr. Nam was 

required to [undergo] the background check, of course with his 

agreement to that and every year that is why we required his 

signature for renewed security, security pledges . . . . 

Id. at 335-36. 

 As part of his duties, Nam learned the routes, destinations, and 

whereabouts of the Ministers.4 From time to time, Nam was required to drive 

high-level government officials who rode with the Mission's Minister, such as "a 

cabinet level VIP . . . visiting from the Republic of Korea," id. at 336, as well as 

"high government officials from other countries," id. at 311. At one point, Nam 

"directly drove [the] national security advisor to the president [of South Korea]," 

id. at 336, and on another occasion he drove the U.N. Secretary General, id. at 312.

From time to time, Nam was required to work with local law

enforcement in accordance with security protocols, and to participate in 

4 At times, this information was sensitive because of the security concerns. For highlevel officials, the routes they would travel for certain events would be kept secret.
7 

motorcades when high-ranking government officials visited the United States. 

For "high level" events, such as meetings of the General Assembly of the United 

Nations when the area around the United Nations headquarters would be closed 

to the public, he would be provided a security pass to permit his admission 

through police barricades. Id. at 315, 352-53.

Nam frequently transported Ministers on personal errands, e.g., "to 

purchase luxury handbags, play golf, and watch Broadway shows," id. at 20 ¶ 56, 

and was paid in cash, working 52 to 62 hours per week and earning around 

$5,000 to $6,500 a month.

Eventually, the Mission informed Nam that he would have to retire 

at age 60, consistent with South Korean law and the Mission's internal policy 

mandating that retirement age. Nam requested an extension of his employment 

contract beyond age 60, however, because his wife lost her job during the 

pandemic. The South Korean government approved this extension and the 

Mission extended Nam's contract until age 61 but set a termination date. On 

September 1, 2020, in exchange for the extension of his employment, Nam signed 

a settlement agreement in which he waived "civil and criminal claims" with 
8 

respect to his termination. Nam was ultimately discharged on June 30, 2021 (the 

date contemplated in his settlement agreement).

II. The Proceedings Below

On July 19, 2021, Nam commenced this action against the Mission 

and three individual defendants (three of the Mission's diplomats), alleging that 

the Mission underpaid him and pressured him to retire, in violation of the Fair 

Labor Standards Act ("FLSA"), the New York Labor Law ("NYLL"), the New 

York State Human Rights Law ("NYSHRL"), and the New York City Human 

Rights Law ("NYCHRL"). 

The Mission moved to dismiss the complaint under Federal Rule of 

Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, invoking the FSIA. 

On January 21, 2022, the district court (Nathan, J.) denied the motion as to the 

Mission.5 The court determined, based on the allegations of the complaint and 

without a hearing, that the Mission's employment of Nam as a designated driver 

for the Mission's high-ranking government officials was inherently commercial 

conduct, and that Nam was performing a "commercial" function in his capacity 

5 The district court dismissed the claims against the three individual defendants. Nam

does not challenge this ruling on appeal.
9 

as a "chauffeur" for the Ministers, thereby triggering the commercial activity 

exception to sovereign immunity under the FSIA. Special App'x at 7. 

Nam and the Mission engaged in discovery. At the close thereof, 

although the district court had previously denied its motion to dismiss, the

Mission moved for summary judgment, again asserting that it was immune 

under the FSIA. Nam opposed the motion and cross-moved for partial summary 

judgment, contending that the district court had subject matter jurisdiction under 

the FSIA's commercial activity exception and seeking an award of damages and 

other monetary relief on his FLSA and NYLL claims.

The district court (Rochon, J.) denied the Mission's motion for 

summary judgment, but it also held -- based solely on the summary judgment 

record and without an evidentiary hearing -- that Nam's employment fell within 

the commercial activity exception. Moreover, the district court granted Nam's 

cross-motion for partial summary judgment on his FLSA and NYLL claims, 

awarding him $138,990.33 in damages and $51,852.91 in prejudgment interest on 

these claims. The court held that Nam's remaining claims -- those under the

NYSHRL and NYCHRL -- would proceed to trial.
10

On February 22, 2023, before the NYSHRL and NYCHRL claims 

could be tried, the Mission filed this interlocutory appeal on the sovereign 

immunity issue.6 The district court stayed the case as to the NYSHRL and 

NYCHRL claims pending this appeal. 

DISCUSSION

We review a district court's decision concerning subject matter 

jurisdiction under the FSIA for clear error as to factual findings and de novo as to 

legal conclusions. See Kensington Int'l Ltd. v. Itoua, 505 F.3d 147, 153 (2d Cir. 

2007). 

Here, it is undisputed that the Mission is an "instrumentality of a 

foreign state" within the meaning of the FSIA and therefore it is presumptively 

immune from the jurisdiction of the United States courts. 28 U.S.C. § 1603(a)-(b). 

Hence, we consider only whether the district court correctly determined that the 

Mission's employment of Nam constituted "commercial activity" under the FSIA. 

6 We have appellate jurisdiction over decisions concerning subject matter jurisdiction

under the collateral order doctrine, which "allows an immediate appeal from an order 

denying immunity under the FSIA." Kensington Int'l Ltd. v. Itoua, 505 F.3d 147, 153 (2d 

Cir. 2007) (internal quotation marks and citation omitted). In addition, we have 

jurisdiction over the district court's order denying the motion to dismiss because the 

summary judgment order relied extensively on the reasoning of the motion to dismiss 

decision and is "inextricably intertwined" with the issue under review. See Lamar 

Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 372 (2d Cir. 2004). 
11

We conclude the district court erred, both at the motion to dismiss stage, when it 

found that the Mission was not immune based solely on the allegations of the 

complaint, and again on summary judgment, when it held, despite the existence 

of factual issues, that the commercial activity exception to sovereign immunity 

applied. Accordingly, we vacate the district court's decision and remand for 

further proceedings. 

 I. Applicable Law

A. The FSIA

The FSIA provides that "a foreign state shall be immune from the 

jurisdiction of the courts of the United States and of the States," subject to several 

enumerated exceptions. 28 U.S.C. § 1604. The commercial activity exception 

abrogates foreign sovereign immunity in any case "in which the action is based 

upon a commercial activity carried on in the United States by the foreign state." 

Id. § 1605(a)(2). To trigger the exception, the commercial activity must also have 

"substantial contact with the United States." Id. § 1603(e).7 

7 We do not reach the issue of whether the Mission's employment of Nam had 

substantial contact with the United States because we remand for the district court to 

further consider whether the Mission's employment of Nam constitutes commercial 

activity.
12

In determining whether a claim is "based upon" commercial activity 

for purposes of the FSIA, courts must identify the particular conduct on which 

the plaintiff's action is based. OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 33 

(2015). The FSIA provides that commercial activity is "a regular course of 

commercial conduct or a particular commercial transaction or act" and that the 

commercial nature of an activity is "determined by reference to the nature of the 

course of conduct or particular transaction or act, rather than by reference to its 

purpose." 28 U.S.C. § 1603(d). A foreign state engages in commercial activity 

"where it exercises only those powers that can also be exercised by private 

citizens, as distinct from those powers peculiar to sovereigns." Saudi Arabia v. 

Nelson, 507 U.S. 349, 360 (1993) (internal quotation marks and citation omitted). 

The FSIA expressly leaves for courts the discretion to define the 

contours of the commercial activity exception. H.R. Rep. No. 94-1487, at 16 

(1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6615 (leaving "courts . . . a great 

deal of latitude in determining what is a 'commercial activity' for purposes of 

[the FSIA]"). In the context of employment cases in particular, the courts have 

differed significantly in how they determine whether the commercial activity 

exception applies. See Andrew Hoy, Note, The Ill-Fated Employee: Foreign 
13

Sovereign Immunity in Employment Disputes and a Legislative History That Has 

Swallowed the Text of the Statute, 73 RUTGERS U.L. REV. 821, 825 (2021) ("United 

States courts considering sovereign immunity in the context of an employment 

action have so far failed to find a consistent application of the commercial 

exception."). Specifically with respect to chauffeurs, for example, courts in this 

Circuit have reached differing results.8 

We have addressed the commercial activity exception on several 

occasions. In Kato v. Ishihara, we considered whether the commercial activity 

exception applied to the employment by the Tokyo Metropolitan Government 

8 Compare Mourmouni v. Permanent Mission of Republic of S. Sudan to United Nations, No. 

20-CV-3603 (JPO), 2021 WL 4461829, at *3 (S.D.N.Y. Sept. 28, 2021) (applying the 

commercial activity exception, and concluding that "work performed by a chauffeur for 

a permanent mission is an activity that could be, and in fact regularly is, performed by 

private-sector businesses, such as car services and corporations employing in-house 

executive chauffeurs") (internal quotation marks and citation omitted), with Figueroa v. 

Ministry for Foreign Affs. of Swed., 222 F. Supp. 3d 304, 313-16 (S.D.N.Y. 2016) 

(concluding that the commercial activity exception did not apply, and noting that a 

chauffeur for the Swedish Mission was responsible for "the safe transport of Swedish 

dignitaries, an activity integral to effecting the governmental function of the Mission"), 

Bardales v. Consulate Gen. of Peru in N.Y., 490 F. Supp. 3d 696, 702-05 (S.D.N.Y. 2020) 

(holding that the commercial activity exception did not apply where a consulate 

employee performed administrative tasks, including "chauffeuring"), and Ayekaba v. 

Mba, No. 18-cv-12040 (PGG) (SDA), 2019 WL 8989861 (S.D.N.Y. Nov. 25, 2019), R. & R.

adopted, 2020 WL 1130731, at *1, *3 (S.D.N.Y. Mar. 6, 2020) (holding that the commercial 

activity exception did not apply to a "driver" employed by the Mission of Equatorial 

Guinea).
14

("TMG")9 of a "marketing agent" who engaged in promotional activities on behalf 

of Japanese companies in New York, including working trade show booths and 

creating marketing reports. 360 F.3d 106, 109 (2d Cir. 2004). The agent brought 

sexual harassment, retaliation, and discrimination claims against TMG. In 

response to TMG's assertion of sovereign immunity, she relied on the 

commercial activity exception, asserting that as a marketing agent, her 

employment was commercial in nature. We held that TMG's actions did not fall 

within the commercial activity exception. We reasoned that while a private 

Japanese business might engage in promotional and business development 

activities, "such a business would not typically undertake the promotion of other 

Japanese businesses, or the promotion of Japanese business interests in general," 

and that "[t]he promotion abroad of the commerce of domestic firms is a basic --

even quintessential -- governmental function." Id. at 112. Because TMG's 

promotion of Japanese businesses abroad in the United States was governmental 

and not commercial activity, the plaintiff's involvement in those activities did not 

render her employment commercial in nature. Id.

9 TMG is the municipal government of the city of Tokyo. Kato, 360 F.3d at 107. 
15

Moreover, we noted that the plaintiff was subject to Japanese laws 

"governing local public servants," id. at 109 (internal quotation marks omitted), 

and that the House Report accompanying the bill that became the FSIA included 

civil servants in the list of workers who fell outside of the commercial activity 

exception, see id. at 110; see also H.R. Rep. No. 94-1487, at 16, as reprinted in 1976 

U.S.C.C.A.N. 6604, 6615 (listing employment of "diplomatic, civil service, or 

military personnel" as governmental, and employment of "laborers, clerical staff 

or public relations or marketing agents" as commercial). We instructed that "the 

category of 'civil service' should be interpreted to include the broad range of civil 

service employment relationships used by countries other than the United 

States." Kato, 360 F.3d at 112. And we concluded that this was relevant to 

whether the commercial activity exception did not apply. See Pablo Star Ltd. v. 

Welsh Gov't, 961 F.3d 555, 563 (2d Cir. 2020). 10

10 We further explained in Kato that "[i]n determining whether a foreign government's 

employment of personnel in the United States is 'civil service,' and therefore 

'governmental,' we do not look principally to whether that employment resembles the 

contemporary civil service of the American democracy, but we instead inquire whether 

'the particular actions that the foreign state performs . . . are the type of actions by which 

a private party engages in 'trade and traffic or commerce.'" 360 F.3d at 114 (quoting 

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)). 
16

In 2020, we once again addressed the commercial activity exception 

in Pablo Star Limited v. Welsh Government. 961 F.3d at 557. There, the Welsh 

government allegedly engaged in the unauthorized copying and distribution of 

copyrighted photos to promote Wales-related tourist activities in New York. 

While the purpose of this activity would seem similar to the promotion of a 

foreign government's commerce that was at issue in Kato, we reached a different 

result, holding that the activity in question fell within the commercial exception. 

We held that "[w]hether an activity is deemed 'commercial' under the FSIA 

depends on its 'nature' rather than its 'purpose,' . . . where 'purpose' is 'the reason

why the foreign state engages in the activity' and 'nature' is 'the outward form of 

the conduct that the foreign state performs or agrees to perform.'" Id. at 561

(quoting Nelson, 507 U.S. at 361). In Pablo Star, the "means" by which the Welsh 

government acted was through the "publication, on-line and in print," of 

advertising materials, "an activity that could be, and in fact regularly is, 

performed by private-sector businesses." Id. at 562. We cautioned that 

determining the nature of the sovereign's conduct might "require a nuanced 

examination of the context of the acts involved." Id. at 561. 
17

The Court distinguished the case from Kato, noting first that the 

Welsh government in Pablo Star was engaging in promotional activities on its 

own behalf and not on behalf of third parties (as in Kato). Id. at 563; see id. 

(observing that "TMG performed actions that were superficially similar to those 

typically undertaken by private parties," but that private parties would not 

typically undertake the promotion of other businesses or of business interests in 

general). Second, we observed that the plaintiff's claims in Kato arose out of 

TMG's civil-service-like personnel practices and not TMG's promotion of 

Japanese businesses abroad. Id. at 564. "Our inquiry in Kato was thus directed to 

assessing whether the plaintiff was a bona fide public servant," whereas our 

inquiry in Pablo Star focused on the Welsh government's advertising activities. 

Id. at 563; see also id. at 564 ("[I]n Kato, the plaintiff's alleged injuries were not 

based on TMG's promotion of Japanese business interests abroad but on TMG's 

alleged harassing and retaliatory conduct as an employer of civil servants. 

Indeed, the Kato Court based its decision in part on the fact that Kato was a civil 

servant and that the FSIA's legislative history identified employment of civil 

service personnel as an example of governmental activity."). 
18

In light of the caselaw, it is apparent that the issue of whether a 

sovereign's actions fit within the commercial activity exception is a fact-intensive 

one, and a court's inquiry should be guided by the following considerations: 

● The particular conduct by the sovereign on which the action is 

based; 

● The nature of that conduct, that is, its outward form, rather 

than its purpose; 

● Whether the actions in question are similar to those that are 

typically taken by private citizens, or whether they are particular to 

sovereigns; and

● In the employment context, whether the plaintiff is a "civil 

servant," taking into account the broad range of civil service 

employment relationships existing in other countries. 

B. Procedural Issues

"A defendant seeking sovereign immunity bears the burden of 

establishing a prima facie case that it is a foreign sovereign." Pablo Star, 961 F.3d at 

559-60. "Once the defendant makes that showing, the burden shifts to the 

plaintiff to make an initial showing that an enumerated exception to sovereign 

immunity applies." Id. at 560. "Once the plaintiff has met its initial burden of 

production, the defendant bears the burden of proving, by a preponderance of 

the evidence, that the alleged exception does not apply." Id. "In other words, the 
19

ultimate burden of persuasion remains on the party seeking sovereign 

immunity." Id.

In addressing a claim of sovereign immunity, a court will start by 

considering the allegations of the complaint, but it may, in appropriate 

circumstances, consider matters outside the complaint as well. See id. at 560; 

Robinson v. Gov't of Malaysia, 269 F.3d 133, 140-41 (2d Cir. 2001). A "defendant 

may challenge either the legal or factual sufficiency of the plaintiff's assertion of 

jurisdiction, or both." Robinson, 269 F.3d at 140. "If the defendant challenges only 

the legal sufficiency of the plaintiff's jurisdictional allegations, the court must 

take all facts alleged in the complaint as true and draw all reasonable inferences 

in favor of plaintiff." Id. (internal quotation marks and citation omitted). But 

where there is a factual challenge and "evidence relevant to the jurisdictional 

question is before the court, the district court . . . may refer to [that] evidence." Id. 

(internal quotation marks and citation omitted). Indeed, this Court has held that, 

when factual disputes exist, "it [is] error for the district court to accept the mere 

allegations of the complaint as a basis for finding subject matter jurisdiction." See 

Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998), overruled on 

other grounds by Lotes Co., Ltd. v. Hon Hai Precision Indus. Co., 753 F.3d 395 (2d Cir. 
20

2014); Filetech, 157 F.3d at 932 ("Our rule is that, on a challeng[e] [to] the district 

court's subject matter jurisdiction, the court may resolve disputed jurisdictional 

fact issues by reference to evidence outside the pleadings . . . .") (internal 

quotation marks and citation omitted). 

If the court cannot resolve the jurisdictional question as a matter of 

law because of the existence of conflicting evidence, the district court "may hold 

an evidentiary hearing, if it considers that such a hearing is warranted." Filetech, 

157 F.3d at 932. In that circumstance, the court essentially conducts a bench trial 

on the issue of sovereign immunity. See Clark v. Hanley, 89 F.4th 78, 96 (2d Cir. 

2023) (holding, in the context of equitable tolling, that an "evidentiary hearing . . . 

functions . . . as a bifurcated bench trial"). Indeed, at such a hearing, the district 

court must "make credibility findings, weigh evidence, and resolve factual 

disputes that bear on [the issue]." Id.11 At a minimum, the district court must

make findings of fact relevant to the issue. Filetech, 157 F.3d at 932.

11 In Filetech we "identified a number of factual issues bearing on the question of subject 

matter jurisdiction that need[ed] to be resolved on remand." 157 F.3d at 932. 

Consequently, we ruled that on remand the district court "should consider all the 

submissions of the parties and may hold an evidentiary hearing, if it considers that such 

a hearing is warranted, in resolving the question of jurisdiction. Before arriving at its 

legal conclusion regarding the existence vel non of subject matter jurisdiction, the district 

court should resolve the disputed factual matters by means of findings of fact." Id.
21

 II. Application

A. The Motion to Dismiss

Here, when the Mission moved to dismiss based on sovereign 

immunity, the district court did not merely deny the motion, but instead it held 

that the Mission was not immune because Nam's employment as a chauffeur was 

commercial activity. Hence, the district court ruled on the merits of the 

immunity question, based on the "facts . . . taken from Plaintiff's complaint." 

Special App'x at 2. As the district court acknowledged, however, factual issues 

existed with respect to the commercial activity exception, such as the scope of 

Nam's employment activities on behalf of the Mission. But as we held in Filetech, 

"it [is] error for the district court to accept the mere allegations of the complaint 

as a basis for finding subject matter jurisdiction" when factual disputes exist. 157 

F.3d at 932. 

The district court also erred in holding that "[i]n resolving this 

jurisdictional dispute, the court may not construe disputed issues of fact in favor 

of one party or another." Special App'x at 6 (citing Pablo Star, 961 F.3d at 559). At

the motion to dismiss stage, courts may decide disputed issues of fact to resolve a 

jurisdictional dispute. And if an evidentiary hearing is warranted, courts should 
22

hold a hearing, consider the extrinsic evidence, and make findings of fact. These 

errors were not harmless because when the parties relitigated the issue of 

sovereign immunity on summary judgment, the district court's summary 

judgment decision relied heavily on the earlier decision on the motion to dismiss. 

B. The Cross-Motions for Summary Judgment 

The Mission moved for summary judgment arguing that it was 

immune. Nam opposed the motion, cross-moved on the applicability of the 

commercial activity exception, and cross-moved for an award of damages and 

other monetary relief on his wage-and-hour claims. The district court denied the 

Mission's motion and granted Nam's cross-motion, holding as a matter of law 

that the Mission was not immune because Nam's employment as a chauffeur fell 

within the commercial activity exception. But it did so without a hearing, and, as 

the district court noted, while drawing "all reasonable inferences against the 

[Mission] and in favor of [Nam]." Special App'x at 32. 

While drawing all reasonable inferences in favor of Nam and against 

the Mission would be the proper application of the summary judgment standard 

when considering the Mission's motion for summary judgment, the district court 

erred by drawing inferences in Nam's favor when considering (and granting) 
23

Nam's cross-motion and holding, as a matter of law, that the Mission was not 

immune because the commercial activity exception did not apply. Indeed, the 

district court awarded Nam damages and interest on his wage-and-hour claims. 

On cross-motions for summary judgment, "[w]e evaluate each 

party's motion on its own merits, taking care in each instance to draw all 

reasonable inferences against the party whose motion is under consideration." 

Jingrong v. Chinese Anti-Cult World Alliance Inc., 16 F. 4th 47, 56 (2d Cir. 2021); 

accord Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010).12 In applying this standard 

12 We pause to note our skepticism that Federal Rule of Civil Procedure 56 was a proper 

vehicle for the Mission's jurisdictional challenge. As explained above, on a motion 

challenging jurisdiction under the FSIA, the district court is empowered to weigh 

evidence and make findings of fact. That task is inconsistent with the district court's 

role on a motion for summary judgment; the conclusion that a genuine and material 

factual dispute exists would ordinarily end the district court's inquiry and send the case 

to trial. See Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 25 (2d Cir. 2015). Indeed, we 

have suggested that a Rule 12(b)(1) motion, as opposed to a Rule 56 motion, is more 

appropriate where, as is the case here, the defendant attacks the "discrete question" of 

subject matter jurisdiction without the issue being intertwined with the underlying 

merits of the plaintiff's claims. See London v. Polishook, 189 F.3d 196, 198-99 (2d Cir. 

1999). And several of our sister Circuits have recognized that that Rule 12(b)(1) is the 

more appropriate mechanism for factual attacks to FSIA immunity. See, e.g., Kirkham v. 

Societe Air France, 429 F.3d 288, 291 (D.C. Cir. 2005) (construing defendant's Rule 56 

motion seeking FSIA immunity as a Rule 12(b)(1) motion to dismiss for lack of subject 

matter jurisdiction because summary judgment "represents a decision on the merits, 

which courts may render only after jurisdiction has been established"), abrogation on 

other grounds recognized by Rosenkrantz v. Inter-Am. Dev. Bank, 35 F.4th 854, 863 (D.C. Cir. 

2022); Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172-73 (5th Cir. 1994) (rejecting 

contention that the summary judgment standard should have applied where disputed 

factual issues on the FSIA immunity existed); see also Glencore Denrees Paris v. Dep't of 
24

to Nam's cross-motion for summary judgment, the district court should have 

viewed the evidence in the light most favorable to the Mission. See Baldwin, 805 

F.3d at 25 (summary judgment is appropriate only when, "viewing the evidence 

in the light most favorable to the non-moving party," there is no genuine dispute 

as to any material fact) (emphasis added)).

Here, there was sufficient evidence in the record, with all reasonable 

inferences drawn in the Mission's favor, to have warranted explicit fact finding 

and, if necessary, an evidentiary hearing. At such a hearing, of course, the 

district court would have been free to weigh and resolve conflicts in the evidence 

and to make findings of fact to decide the immunity issue.

Based on the following evidence, for example, the district court 

could have reasonably concluded that the Mission's employment of Nam as a 

chauffeur was governmental and not commercial in nature:

● Nam was the driver for the Minister, a high-level government 

official;

● From time to time, Nam also drove other high-level officials, 

including a national security adviser and cabinet-level officials from 

Nat’l Store Branch 1, No. 99 CIV. 8607, 2008 WL 4298609, at *3 n.4 (S.D.N.Y. Sept. 19, 

2008) (Sullivan, J.) (drawing the same distinction regarding FSIA immunity). However, 

because the parties did not raise this argument, we review the immunity decision 

pursuant to its existing procedural posture. 
25

the Republic of Korea as well as high-level officials from other 

countries; he once drove the United Nations Secretary General;

● Nam was required to submit to a high-level security clearance, 

not just to an ordinary employment background check, and was 

subject to annual polygraph tests; 

● From time to time, Nam was exposed to classified 

information, and had to agree that any knowledge acquired while 

driving for the Mission was considered nationally classified 

information;

● Nam had to renew annually a pledge not to divulge any 

classified information he acquired, under penalty of punishment 

pursuant to Korean law;

● From time to time Nam would learn other sensitive 

information, such as the routes that dignitaries would travel as well 

as their destinations and whereabouts; 

● On occasion, Nam would have to work with local law 

enforcement regarding security protocols;

● Nam participated in motorcades involving high-ranking 

government officials;

● From time to time Nam would receive special security passes 

for events such as meetings of the United Nations General 

Assembly; and

● Nam was required to abide by diplomatic protocols and was 

subject to the requirements of South Korean law and the Mission's 

internal policies.
26

 To be sure, Nam disputes some of these facts, contending, for 

example, that his work was limited to the task of driving, that he did not receive 

advance notice of events, that he "just drove when [he] was asked to drive," 

App'x at 315, and that he was never asked to take a polygraph test. But on 

Nam's cross-motion for summary judgment, any conflicts in the evidence should 

have been resolved in favor of the Mission.

 In concluding that Nam's employment was commercial, the district 

court drew a number of conclusions. It held that "[b]ackground-checking 

employees and exposing them to confidential, and even classified, information is 

not enough to convert employment that is fundamentally commercial into noncommercial activity." Special App'x at 33. It further concluded that the fact Nam 

"was exposed to confidential information and was expected not to disclose it 

does not mean that he was performing a governmental function as opposed to a 

commercial function," as it reasoned that "dedicated drivers and car services in 

the commercial realm may also learn of confidential information in the course of 

their driving that they are expected to keep confidential." Id. at 34. Similarly, the 

district court was not persuaded that the "conduct of hiring a chauffeur, even 

with the purpose of ensuring the safety and security of high-level officials, is 
27

conduct that is not commercial in nature." Id. at 35. Finally, it observed that the 

fact that Nam "abided by cultural protocols while performing chauffeur duties 

for high level officials . . . is not sufficient to alter the commercial conduct of 

hiring a designated driver," noting that "[c]hauffeurs or designated drivers for 

private entities are expected to provide a pleasant professional experience and 

may be asked to abide by etiquette and protocols established by commercial 

companies." Id. at 36.

 All of these observations may be true, but in reaching these 

conclusions, the district court was not drawing inferences in favor of the Mission 

as the non-movant on Nam's cross-motion. Indeed, all of these facts could also 

reasonably indicate that the Mission's employment of Nam was a 

quintessentially government function not akin to hiring a private driver. And in 

discussing Nam's job duties, we do so for the purpose of analyzing the Mission’s

conduct.

 First, the record contains substantial evidence that the Mission hired 

Nam with the expectation that he might have access to classified information, a 

fact that would support a finding that his employment was governmental in 

nature. Commercial entities do not as a general matter require their drivers to 
28

obtain high-level security clearances or to submit to intensely detailed personal 

background inquiries or to agree to annual polygraph tests or to pledge 

confidentiality under penalty of law. See Stehney v. Perry, 101 F.3d 925, 928 n.3 

(3d Cir. 1996) (explaining that a polygraph interview can be used to protect

against the "deliberate disclosure of classified information"). Classified 

information encompasses a government's state secrets, see United States v. Aref, 

533 F.3d 72, 78 (2d Cir. 2008), and commercial drivers usually are not entrusted 

with state secrets. Commercial drivers may overhear passengers talking about 

confidential business matters, see Mohammad v. Gen. Consulate of State of Kuwait in 

Los Angeles, 28 F.4th 980, 988 (9th Cir. 2022) ("A person hired for a clerical 

position does not become a diplomat or civil servant because the sovereign 

chooses to expose that person to confidential matters."), but commercial drivers 

generally are not exposed to conversations between high-level foreign 

government officials in matters of sensitive foreign relations. Indeed, the 

protection of classified information implicates interests of national security. 

Egan, 484 U.S. at 528-29. 

 Second, the safe transport of high-level government officials is 

indeed a genuine sovereign concern. See Butters v. Vance Int'l, Inc., 225 F.3d 462, 
29

465 (4th Cir. 2000) ("[A] foreign sovereign's decision as to how best to secure the 

safety of its leaders . . . is quintessentially an act 'peculiar to sovereigns.'"

(quoting Nelson, 507 U.S. at 360)); see Figueroa, 222 F. Supp. 3d at 315 ("A 

sovereign's decisions on how best to address the safety concerns of government 

officials are peculiarly sovereign because the failure to protect or safeguard a 

sovereign representative, such as an ambassador or a titular head of state, can 

have extremely adverse consequences for the sovereign nation."). While 

commercial entities may hire designated drivers and engage car services with the 

expectation that safety standards will be met, drivers in the commercial and 

private context do not as a matter of course work with local law enforcement or 

provide rides to cabinet-level officials from multiple countries or participate in 

motorcades. See Figueroa, 222 F. Supp. 3d at 315 (holding that employment of 

chauffeur entrusted with "safe transport of Swedish dignitaries" was "an activity 

integral to effecting the governmental function of the Mission" and was therefore 

non-commercial); accord Nelson, 507 U.S. at 362 ("Exercise of the powers of police 

and penal officers is not the sort of action by which private parties can engage in 

commerce."). 
30

Third, the record contains evidence that the Mission required Nam 

to follow certain protocols expected of diplomatic officials. Nam acknowledged, 

for example, that when the Minister he was driving attended certain 

international events, he was expected to and did comply with "ceremonial orders 

or protocols" because he was "part of the Mission." App'x at 310-11. Commercial 

drivers will drive their passengers to events, but they are not expected to 

participate in them. Nam's contract also prohibited him from engaging in certain 

activities, including engaging in "any act of any kind which may be contrary to 

the national interest of the Republic of Korea," id. at 408, and he was even 

required to inform the Mission if he married a foreign national, id. at 481. 

Workers employed by private or commercial actors are not generally required to 

abide by national diplomatic protocols or pledge loyalty to their nation as a 

condition of employment or report their marriage to a foreign national. This is 

all evidence from which a factfinder could find that the Mission’s employment of 

Nam fell outside "participation in the marketplace in the manner of a private 

citizen or corporation." Weltover, 504 U.S. at 614. 

 We note also that the district court may have overread this Court's 

decision in Pablo Star when it concluded that "none of the facts relied upon by 
31

[the Mission] establish, per Pablo Star, that the outward form of the conduct -- the 

employment of a driver -- is a governmental activity as opposed to a commercial 

activity." Special App'x at 37-38. While the district court was correct in noting, 

pursuant to Pablo Star, that the key is the nature of the foreign state's conduct and 

not its purpose, id. at 38, it failed to acknowledge that in Pablo Star we cautioned

that "[s]eparating the 'nature' from the 'purpose' of an activity may require a 

nuanced examination of the context of the acts involved." 961 F.3d at 561. We 

suggested that the context in which the acts occurred cannot be ignored. Id. at 

562. 

 The district court held that "the conduct of hiring a driver is a 

commercial activity and not a power peculiar to sovereigns." Special App'x at 38. 

This may be superficially true, but as we noted in Pablo Star in the context of the 

copying and distributing of photographs: "Literally anyone can do those things, 

and such actions are regularly performed by private parties. But without some 

understanding of context, that is not much help in distinguishing sovereign from 

commercial conduct." 961 F.3d at 562. Here, a more nuanced examination of the 

context -- the hiring not just of "a driver," but of a driver for high-level officials of 
32

a foreign government amidst concerns of national security, the safety of foreign 

dignitaries, and diplomatic protocol -- was required.

We do not hold, as a matter of law, that the Mission is entitled to 

judgment in its favor. The record does, indeed, contain evidence to support 

Nam's position that his employment was commercial in nature. The Mission 

concedes, for example, that Nam was "non-diplomatic staff" and that his primary 

responsibility was driving. Special App'x at 6. The Mission hired Nam through 

an online ad, a fact that also supports a finding that the Mission was acting "in 

the manner of a private player within the market." Nelson, 507 U.S. at 360

(internal quotation marks and citation omitted). Nam testified that he was just a 

driver, and only drove where he was told to go. Moreover, Nam alleged that he 

was paid in cash throughout his tenure with the Mission -- a method generally 

associated with private employment -- and that he frequently transported 

Ministers on personal errands, e.g., "to purchase luxury handbags, play golf, and 

watch Broadway shows." App'x at 20 ¶ 56. 

Accordingly, on remand, the district court must weigh these factual 

issues, outline explicitly its findings of fact, and, if necessary, conduct further fact 

finding through a hearing. Factual questions exist, for example, as to whether 
33

Nam was in fact exposed to confidential or classified information and, if so, to 

what extent; the extent to which, if at all, he worked with local law enforcement 

on security protocols; the extent to which he drove high-level government 

officials; the extent to which he provided transportation to Mission personnel for 

personal errands and the like; and the extent to which Nam had diplomatic or 

quasi-diplomatic responsibilities. We note also that the district court should, on 

remand, keep in mind that we look to whether Nam would be considered a civil 

servant in South Korea, not to whether his employment resembles that of an 

American civil servant. See Kato, 360 F.3d at 113 ("Other countries are free to 

structure employment relationships in ways that do not mimic civil service 

protections now common to the United States and many European states, 

without thereby sacrificing the immunity conferred by the FSIA, as long as the 

sovereign, by extending the employment, is engaging in 'government' rather 

than 'commercial' activity.") 
34

 Of course, on remand, the district court would be free to weigh the 

evidence, to resolve conflicts in the evidence and testimony, and to make 

findings of fact to resolve the immunity issue.13

CONCLUSION

The district court erred in granting summary judgment to Nam and 

concluding, as a matter of law and without resolving outstanding factual issues, 

that his employment fell within the FSIA's commercial activity exception. Thus, 

we VACATE the district court's decision and REMAND for further proceedings

consistent with this opinion. 

13 Finally, both the Mission and Nam demanded a jury trial; and the Civil Case 

Management Plan filed below states that "[t]his case is to be tried to a jury." App'x at 4. 

But the district court has jurisdiction over this case only under 28 U.S.C. § 1330(a), see

Ruggiero v. Compania Peruana de Vapores Inca Capac Yupanqui, 639 F.2d 872, 875 (2d Cir. 

1981), and that statute states that "district courts shall have original jurisdiction without 

regard to amount in controversy of any nonjury civil action against a foreign state as defined 

in section 1603(a) of this title as to any claim for relief in personam with respect to which 

the foreign state is not entitled to immunity either under sections 1605-1607 of this title 

or under any applicable international agreement," 28 U.S.C. § 1330(a) (emphasis added). 

Hence, the district court lacks jurisdiction to try the merits of this case to a jury.