United States Court of Appeals

For the First Circuit

_____________________

No. 17-2211

CYNTHIA L. MERLINI,

Plaintiff, Appellant,

v.

CANADA,

Defendant, Appellee.

__________________

Before

Howard, Chief Judge,

Torruella, Lynch, Thompson, Kayatta, and Barron, Circuit Judges.

__________________

ORDER OF COURT

Entered: October 23, 2019

The petition for rehearing having been denied by the panel of judges who decided 

the case, and the petition for rehearing en banc having been submitted to the active judges of this 

court and a majority of the judges not having voted that the case be heard en banc, it is ordered 

that the petition for rehearing and the petition for rehearing en banc be denied.

TORRUELLA, Circuit Judge. I voted in favor of granting en banc review 

because this appeal raises "a question of exceptional importance." See Fed. R. App. P. 35(a)(2).

LYNCH, Circuit Judge, with whom HOWARD, Chief Judge, joins, dissenting 

from the denial of rehearing en banc. We regret that this court has denied en banc review. We 

urge the Supreme Court to grant review in this important case about the Foreign Sovereign 

Immunities Act (FSIA), 28 U.S.C. § 1602 et. seq. The opinion rests on what we view as significant 

misreadings of FSIA and of Supreme Court FSIA precedent. Further, the opinion ignores the clear 

text of the FSIA statute and impermissibly relies on supposed legislative history -- not text -- to 

create distinctions not in the statute. In our view, the decision is inconsistent with the views of 

other circuits, creating a circuit conflict, and is in derogation of principles of comity and 

international law.

Predictably, the majority opinion will precipitate a reciprocal effect on this 

country's foreign affairs at its numerous embassies and legations abroad, and, as the State 

Department has plainly stated, these effects will be adverse to our national interest. The 
consequences are far reaching: in this circuit alone, this opinion subjects over forty foreign 

consulates to the many variations in local and state laws that are contrary to matters that were 

determined by such countries' legislatures.

The core legal issue is what conduct Merlini's claim against Canada is "based 

upon." See Saudi Arabia v. Nelson, 507 U.S. 349, 356 (1993); OBB Personenverkehr AG v. Sachs, 

136 S. Ct. 390, 396 (2015). Here, the correct answer should have been that the claim is based upon 

Canada's sovereign choice, by legislation, to have its own workers' compensation scheme for all 

of its government employees, including those at its Boston consulate. In focusing on a downstream 

consequence of Canada's sovereign decision instead of the decision itself, the majority opinion 

misreads the text of FSIA and misconstrues Nelson, Sachs, and Republic of Argentina v. Weltover 

Inc., 504 U.S. 607 (1992). The opinion also conflicts with cases from the D.C., Second, and Ninth 

Circuits. See Anglo-Iberia Underwriting Mgmt. v. P.T. Jamsostek, 600 F.3d 171 (2d Cir. 2010); 

Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020 (D.C. Cir. 1997); Gregorian v. 

Izvestia, 871 F.2d 1515 (9th Cir. 1989); MacArthur Area Citizens Ass'n v. Republic of Peru, 809 

F.2d 918 (D.C. Cir. 1987).

Beyond that, the opinion's assertion that its rationale will lead to the loss of 

Canada's sovereign immunity only as to low-level workers (for which it cites a House Committee 

Report),1itself violates rules of statutory interpretation. Nothing in the text of FSIA carves out 

differential treatment based on the perceived level or relative importance of a worker's 

responsibilities. See 28 U.S.C. § 1605 (laying out "[g]eneral exceptions to the jurisdictional 

immunity of a foreign state").2 The opinion thus violates the tenet that legislative history may not 

be used to alter text. See Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) 

("Even those of us who sometimes consult legislative history will never allow it to be used to 

'muddy' the meaning of 'clear statutory language.'" (quoting Milner v. Dep't of Navy, 562 U.S. 

562, 572 (1999))); Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 599 (2011) 

("[Congress's] authoritative statement is the statutory text, not the legislative history." (quoting 

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005))); Shannon v. United 

States, 512 U.S. 573, 584 (1994) ("[C]ourts have no authority to enforce a principle gleaned solely 

from legislative history that has no statutory reference point." (alterations omitted) (quoting Int'l 

Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 712 (D.C. Cir. 1987))). 

 

1 The House Report itself may not be relied on, even if use of legislative history were 

appropriate. See Am. Broad. Cos., Inc. v. Aereo, Inc., 573 U.S. 431, 457-58 (2014) (Scalia, J., 

dissenting) (cautioning against using "a few isolated snippets of legislative history" from a 

committee report "as authoritative evidence of congressional intent even though they come from 

a single report issued by a committee whose members make up a small fraction of one of the two 

Houses of Congress"); NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 582 (1994) ("[I]t 

is the function of the courts and not the Legislature, much less a Committee of one House of the 

Legislature, to say what an enacted statute means." (quoting Pierce v. Underwood, 487 U.S. 552, 

566 (1988))). 

2

Indeed, Canada's legislation rejected that distinction. See Government Employees 

Compensation Act, R.S.C. 1985, c. G-5 § 7(1) (Can.) (applying to all "locally engaged" 

employees). 
As said in Boos v. Barry, 485 U.S. 312, 323-24 (1988), this country protects other 

countries' sovereign immunity so that "similar protections will be accorded to [the U.S. abroad]." 

See also Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., 137 S. Ct. 

1312, 1322 (2017); Nat'l City Bank of N.Y. v. China, 348 U.S. 356, 362 (1955). The State 

Department has told us that "many foreign nationals employed by U.S. embassies and consulates 

-- including Canadian citizens employed by the United States in Canada -- are currently entitled to 

workers' compensation benefits in virtue of United States law, not local law." See Federal 

Employees' Compensation Act, 5 U.S.C. § 8101, et. seq.3 The majority's conclusion that Canada's 

administration of its own statutory workers' compensation scheme here is not protected by its 

sovereign immunity leads to the conclusion that our government's similar actions as to employees, 

foreign or American, of its consulates and embassies will not be granted immunity.4 By denying 

Canada's choice to implement a federal workers' compensation scheme the respect and deference 

it is entitled to, the consequences of the opinion will likely be that FECA -- Congress's choice of 

comprehensive workers' compensation -- will not be given that deference. We do not believe 

Congress intended such an outcome.

For these reasons, we dissent.

By the Court:

Maria R. Hamilton, Clerk

cc:

Hon. Nathaniel M. Gorton

Robert Farrell, Clerk, United States District Court for the District of Massachusetts

Theodore Joel Folkman

Chrisann Leal

Simon A. Steel

Sharon Swingle

Andrew E. Lelling

Noel J. Francisco

Michael Shih

 

3 The Federal Employees' Compensation Act (FECA), first enacted in 1916, is the 

"exclusive measure of compensation" for federal employees with work-related injuries or illnesses, 

including non-citizen, non-resident employees working outside of the United States. 20 C.F.R. 

§ 25.2(d); see Johansen v. United States, 343 U.S. 427, 440 (1952) (describing FECA as a 

"system[] of simple, certain, and uniform compensation for injuries or death" designed "to make a 

workable, consistent, and equitable whole" (citation omitted)). 

4 The United States embassies, consulates, and legations abroad would have to 

conform not only to a foreign country's contrary national laws, but also a range of sub-national and 

regional laws (say, from a particular canton, state, or province). Here, a sub-national law, from 

Massachusetts, creates the perceived conflict. In a country where the United States is operating 

multiple diplomatic posts (which is true in numerous countries; for example, there are about 

nineteen posts in Mexico), the opinion would have the United States operate different schemes and 

systems for foreign nationals employed in the same country, doing essentially the same job.