CYNTHIA L. MERLINI, Plaintiff, Appellant,
CANADA, Defendant, Appellee.
Howard, Chief Judge, Torruella, Lynch, Thompson, Kayatta, and
Barron, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
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
in favor of granting en banc review because this appeal
raises "a question of exceptional importance."
See Fed. R. App. P. 35(a)(2).
Circuit Judge, with whom HOWARD, Chief Judge, joins,
dissenting from the denial of rehearing en banc.
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.
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'
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).
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),  itself 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"). 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.
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. 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. 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.
these reasons, we dissent.
 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 ...