                                                                            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                           NOT FOR PUBLICATION                               JUL 10 2013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

  v.
                                                 MEMORANDUM*
PRINCIPALITY OF MONACO,

                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
               Judge.**

       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


                                          2
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.

      AFFIRMED.


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