In a cautious decision, the United States Court of Appeals for the First Circuit held that sovereign immunity does not protect Canada against a claim brought by a clerical worker who sustained injuries while working at its Boston consulate. The First Circuit held that the case was properly brought under the commercial activity exception of the Foreign Sovereign Immunities Act (FSIA). Merlini v. Canada, 926 F.3d 21 (1st Cir. 2019) (“Merlini I”). Four months later, the First Circuit narrowly denied rehearing en banc, and two dissenting judges urged the Supreme Court to grant certiorari. Merlini v. Canada, 2019 U.S. App. LEXIS 31679 (1st Cir. Oct. 23, 2019) (“Merlini II”). The decision establishes an incentive for sovereign states to enroll in workers’ compensation programs to cover United States citizens whom they employ for non-diplomatic roles.
The First Circuit’s Holding
Plaintiff Cynthia Merlini, a United States citizen, was injured on the job while doing clerical work at the Canadian consulate in Boston. Canada, which does not participate in the Massachusetts workers’ compensation system, paid Merlini under its own national workers’ compensation system. When Canada stopped paying benefits, Merlini sought relief under the Massachusetts Workers’ Compensation Act (MWCA).