CYNTHIA L. MERLINI, Plaintiff, Appellant,
CANADA, Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton,
U.S. District Judge]
Theodore J. Folkman, with whom Murphy & King, P.C. was on
brief, for appellant.
F. Cooney, with whom Benjamin E. Horowitz, Venable LLP, D.E.
Wilson, Jr., Andrew E. Bigart, and Liz C. Rinehart were on
brief, for appellee.
Lynch, Kayatta, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
Merlini ("Merlini") is a United States citizen who
was injured in the course of her employment as an
administrative assistant at the Canadian consulate in Boston,
Massachusetts. The injury occurred in 2009 when she tripped
over a cord in the consulate that had not been secured to the
floor. In 2017, as a result of that injury, Merlini sued
Canada for damages in the United States District Court for
the District of Massachusetts pursuant to the Massachusetts
Workers' Compensation Act (the "MWCA"), which
is codified at Massachusetts General Laws chapter 152.
District Court dismissed Merlini's complaint for lack of
jurisdiction after concluding that Canada was immune from the
suit under the Foreign Sovereign Immunities Act
("FSIA"), 28 U.S.C. § 1602 et. seq.
We now reverse.
2003, the government of Canada hired Merlini -- who is a
resident of Massachusetts, a citizen of the United States,
and not a citizen of Canada -- to be an administrative
assistant to the Consul General of Canada in Boston. Merlini
asserts, and Canada does not contest, that her
"duties" in this position "were purely
clerical, and comparable to the duties of an assistant or
secretary to an executive in any private firm," as
"[s]he answered the phones, maintained files, typed
letters, and did other secretarial work" in the Canadian
consulate in Boston. She further asserts, again without
dispute, that "[s]he was not a consular officer,"
"[s]he had no governmental, consular, diplomatic, or
official duties," "[s]he took no competitive
examination before hiring," and "she was not
entitled to tenure protections, or to the employment benefits
Canadian foreign service officers received."
alleges that, while setting up coffee and tea service on
January 22, 2009 for a meeting at the consulate, she tripped
over an unsecured speakerphone cord, fell, struck a credenza,
and thereby sustained "a serious injury" that left
her unable to work. Canada does not challenge that allegation
for the purpose of the present appeal. Additionally, it is
undisputed that, per Canada's own national workers'
compensation system, Canada paid Merlini what amounted to her
full salary from shortly after the accident until October
thereafter, however, Canada determined that Merlini was able
to return to work and ceased paying her pursuant to its
national workers' compensation system. That determination
appears to have set matters on the course that has resulted
in the suit that is now before us on appeal.
initial step on that course was Merlini's request that
Canada reconsider its determination to stop paying her under
Canada's workers' compensation system. Following
Canada's denial of that request for reconsideration,
Merlini shifted course and sought relief under Massachusetts
did so first, in 2011, by bringing an administrative claim
against the Massachusetts Workers' Compensation Trust
Fund ("WCTF"). That fund provides, among other
things, for the payment of benefits to employees who are
unable to work in consequence of workplace injuries that they
have suffered while working for an employer who is subject to
personal jurisdiction within the Commonwealth and who is
"uninsured" for purposes of the MWCA. See
Mass. Gen. Laws ch. 152 § 65(2)(e). Chapter 152 provides
that, to qualify as "insured," an employer must (1)
have insurance with an insurer, (2) hold membership in a
workers' compensation self-insurance group certified by
the state, or (3) be licensed as self-insured annually by the
state, which requires the employer, among other things, to
complete a detailed application, provide certain financial
information, post a surety bond to or deposit negotiable
securities with the state to cover any losses that may occur,
and purchase catastrophe reinsurance of at least $500, 000.
See id. at §§ 1(6), 25A; 452 Mass. Code
Regs. 5.00; see also LaClair v. Silberline Mfg. Co.,
393 N.E.2d 867, 871 (Mass. 1979).
2013, the Massachusetts Department of Industrial Accidents
("DIA") held an evidentiary hearing, in which
Canada participated as amicus curiae for the WCTF, on
Merlini's claim against the fund. An administrative judge
found that Merlini was entitled to ongoing incapacity
benefits from the fund under chapter 152 § 34 (temporary
total incapacity benefits) and chapter 152 § 34A
(permanent total incapacity benefits).
WCTF then appealed this ruling to the DIA's Reviewing
Board ("DIA Board"). In 2015, the DIA Board
reversed the administrative judge's ruling and denied
Merlini the benefits from the fund. The DIA Board determined
that (1) Canada was not "subject to the personal
jurisdiction of the Commonwealth"; (2) Canada was not
"uninsured" for purposes of the statute because it
had sovereign immunity; and (3) the WCTF was not liable if an
employee was entitled to workers' compensation benefits
in any other jurisdiction, Mass. Gen. Laws ch. 152 §
65(2)(e)(i), and Merlini was in fact entitled under Canadian
law to such benefits under Canada's national workers'
2016, Merlini sought review of the DIA Board's ruling
from the Massachusetts Appeals Court ("MAC"). The
MAC upheld the Board's ruling. The MAC did so, however,
only on the ground that, in consequence of the injury that
Merlini suffered at the consulate, she had been entitled to
benefits in another jurisdiction -- namely, Canada. Thus, the
MAC did not "address whether the Canadian government is
subject to the jurisdiction of the Commonwealth or whether
the Consulate was an 'uninsured employer' in
violation of chapter 152."
did not appeal the MAC's ruling. Instead, in 2017,
Merlini sued Canada for damages in federal district court in
the District of Massachusetts pursuant to chapter 152. It is
that suit that is the subject of this appeal.
moved to dismiss Merlini's suit on jurisdictional grounds
under Federal Rule of Civil Procedure 12(b)(1). Canada
contended in its motion that it was entitled to foreign
sovereign immunity under the FSIA and thus that the District
Court lacked jurisdiction. Canada also separately moved to
dismiss Merlini's suit under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. Canada did
so on the ground that the DIA Board's ruling that Canada
was not "uninsured" was preclusive of Merlini's
claim because the DIA Board had ruled on that basis that
Canada "was not required to obtain local workers'
compensation insurance or register with the state as a
self-insurer and therefore could not be considered an
uninsured employer" under the MWCA.
opposing Canada's motion to dismiss, Merlini first
asserted that two exceptions to the FSIA's presumption of
foreign sovereign immunity applied: the "commercial
activity" exception, 28 U.S.C. § 1605(a)(2),
the "noncommercial tort" exception, id. at
§ 1605(a)(5). Merlini thus contended that the District
Court had jurisdiction over Canada. Merlini also argued that
she had stated a claim against Canada because the DIA Board
ruling did not preclude her claim.
December 2017, the District Court dismissed Merlini's
complaint for lack of jurisdiction on the grounds that,
pursuant to the FSIA, Canada is "'presumptively
immune' from liability in federal courts of the United
States" and that Merlini had failed to demonstrate that
either of the two FSIA exceptions on which she relied in
contesting Canada's sovereign immunity applied.
Merlini v. Canada, 280 F.Supp.3d 254, 256, 258 (D.
Mass. 2017) (quoting Saudi Arabia v. Nelson, 507
U.S. 349, 355 (1993)). The District Court "decline[d] to
address" Canada's separate contention that Merlini
had failed to state a claim for which relief could be
granted. Id. at 259. Merlini now appeals the
District Court's dismissal of her claim for lack of
jurisdiction and also contends that the dismissal of her
claim may not be affirmed on issue preclusion grounds.
start by describing certain aspects of the Massachusetts
workers' compensation scheme, as codified by chapter 152
of the MWCA. Those provisions figure prominently in the
parties' dispute over whether Canada is entitled to
foreign sovereign immunity in this case.
general matter, the MWCA bars an employee from suing her
employer for a work-related injury -- including one resulting
from a fellow employee's conduct -- when the employer is
"insured" within the meaning of the MWCA.
See Mass. Gen. Laws ch. 152 § 24. The MWCA
imposes this bar by providing that an employee waives the
"right of an action at common law . . . [with] respect
to an injury that is compensable under [the MWCA]" if
the employer was insured within the meaning of the MWCA at
the time of the employee's hiring or became insured prior
to the employee's injury, unless the employee preserves
such a right by providing proper notice of the employee's
intent to preserve it. Id.
152, however, sets forth a corollary to this bar. It provides
that, if an employer is not insured within the meaning of the
MWCA, then an employee, generally, may bring a suit against
the employer to recover for a workplace injury -- even if the
conduct is caused by a fellow employee. See Hanover Ins.
Co. v. Ramsey, 539 N.E.2d 537, 538 n.3 (Mass. 1989)
("An employer who has failed to obtain workers'
compensation insurance can be held liable essentially in all
cases in which the employee can prove that he was injured in
the course of his work.").
chapter 152 makes clear that, in such a suit by the employee,
the employer is deprived of asserting a host of important
defenses that would ordinarily be available at common law,
which effectively renders the employee's claim against
the employer a "strict liability" claim. See
Doe v. Access Indus., Inc., 137 F.Supp.3d 14,
16 (D. Mass. 2015); Coppola v. City of
Beverly, 576 N.E.2d 686, 687 (Mass. App. Ct. 1991).
Section 66 of chapter 152 specifies the limitations on the
defenses that are available as follows:
Actions brought against employers to recover damages for
personal injuries or consequential damages sustained within
or without the commonwealth by an employee in the course of
his employment . . . shall be commenced within twenty years
from the date the employee first became aware of the causal
relationship between the disability and his employment. In
such actions brought by said employees . . . it shall not be
a defense: 1. That the employee was negligent; 2. That the
injury was caused by the negligence of a fellow employee; 3.
That the employee had assumed voluntarily or contractually
the risk of the injury; 4. That the employee's injury did
not result from negligence or other fault of the employer, if
such injury arose out of and in the course of employment.
contends that, because Canada is not insured (even as a
self-insurer) within the meaning of chapter 152, she is
entitled under chapter 152 to bring her suit against Canada
for the workplace injury that she suffered. And, she further
contends, for that same reason, Canada is subject in her suit
to the limitations on the defenses that are set forth in
§ 66. Canada argues in response that, precisely because
Merlini relies on § 66, it is entitled to immunity under
the FSIA, even assuming that Canada does not qualify as being
"insured" within the meaning of chapter 152. Thus,
Canada contends, Merlini's claim must be dismissed for
lack of jurisdiction.
now decide whether Canada is right. To do so, we must address
Merlini's contention that Canada lacks foreign sovereign
immunity in consequence of either of two exceptions to such
immunity that the FSIA recognizes.
FSIA "provides the sole basis for obtaining jurisdiction
over a foreign state in federal court." Universal
Trading & Inv. Co. v. Bureau for Representing Ukrainian
Interest in Int'l & Foreign Courts, 727 F.3d 10,
16 (1st Cir. 2013) (quoting Argentine Republic v. Amerada
Hess Shipping Co., 488 U.S. 428, 439 (1989)). The FSIA
establishes "a presumption of foreign sovereign immunity
from the jurisdiction of the courts of the United
States" that typically controls the jurisdictional
question. Id. (citing 28 U.S.C. § 1330;
Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S.
480, 485 n.5 (1983)). Thus, as a general matter, "courts
in the Unites States lack both subject matter and personal
jurisdiction over a suit against a foreign sovereign."
FSIA does, however, set forth a list of express exceptions to
the foreign sovereign immunity that it generally recognizes,
such that foreign states are not immune from suit in federal
court if one of those "enumerated exceptions to immunity
applies." Id. (citing 28 U.S.C. §§
1604, 1605, 1605A; Verlinden, 461 U.S. at 488).
Merlini invokes two of those exceptions -- the
"commercial activity" exception and the
"noncommercial tort" exception -- in contending
that Canada is not entitled to sovereign immunity from her
focus here on one of them, the "commercial
activity" exception, 28 U.S.C. § 1605(a)(2), as we
conclude that, contrary to the District Court's ruling,
this exception does apply. This conclusion, moreover,
precludes the "noncommercial tort" exception from
applying. See 28 U.S.C. § 1605(a)(5) (providing
that "[a] foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States
in any case not otherwise encompassed in paragraph (2) [the
"commercial activity" exception]"). Our review
of the District Court's ruling on this score is de novo.
Universal Trading, 727 F.3d at 15.
"commercial activity" exception provides in
relevant part that "a foreign state is subject to
jurisdiction in any case 'in which the action is
based upon a commercial activity carried on in the
United States by the foreign state.'" Fagot
Rodriguez v. Republic of Costa Rica, 297 F.3d 1, 5 (1st
Cir. 2002) (emphasis added) (quoting 28 U.S.C. §
1605(a)(2)). The inquiry into whether the exception applies
-- at least in a case like this, in which the parties agree
that the foreign state "carried on" the relevant
action "in the United States" -- involves two
first step "requires a court to 'identify the
particular conduct on which the [plaintiff's] action is
based.'" OBB Personenverkehr AG v. Sachs,
136 S.Ct. 390, 395 (2015) (alteration in original) (quoting
Saudi Arabia v. Nelson, 507 U.S. 349, 356 (1993)).
In performing that threshold inquiry, "a court should
identify that 'particular conduct' by looking to the
'basis' or 'foundation' for a claim,"
which the court has variously described as "'those
elements . . . that, if proven, would entitle a plaintiff to
relief'" and as "the gravamen of the
complaint." Id. (omission in original)
(internal citations omitted) (quoting Nelson, 507
U.S. at 357).
inquiry requires more than a myopic focus on whether
"one element" of the claim is based upon a
"commercial activity" of the foreign state. See
id. at 394-96. The right approach looks beyond the fact
that a single element of the claim might be "based
on" such conduct and instead "zeroe[s] in on the
core of" the plaintiff's claim. Id. at 396.
court identifies the particular conduct by the foreign state
on which the plaintiff's claim is "based," the
next step in the inquiry requires a court to determine
whether that conduct qualifies as "commercial
activity." Fagot Rodriguez, 297 F.3d at 5. If
the conduct does so qualify, then the "commercial
activity" exception to foreign state sovereign immunity
applies, at least when, as in this case, the parties do not
dispute that the conduct was "carried on" by the
foreign state "in the United States."
term 'commercial activity' encompasses both 'a
regular course of commercial conduct' and 'a
particular commercial transaction or act.'"
Id. (quoting 28 U.S.C. § 1603(d)). As we have
explained, however, "the question is not whether the
foreign government [was] acting with a profit motive or
instead with the aim of fulfilling uniquely sovereign
objectives," but "[r]ather, the issue is whether
the particular actions that the foreign state perform[ed]
(whatever the motive behind them) [were] the type of
actions by which a private party engages in 'trade and
traffic or commerce.'" Id. at 6
(alterations in original) (quoting Republic of Argentina
v. Weltover, Inc., 504 U.S. 607, 614 (1992)). Thus,
"[i]n assessing whether a certain transaction or course
of conduct is commercial in character, courts must look to
the 'nature' of the activity rather than its
'purpose.'" Id. at 5-6; see
also 28 U.S.C. § 1603(d) ("The commercial
character of an activity shall be determined by reference to
the nature of the course of conduct or particular transaction
or act, rather than by reference to its purpose.").
this legal background, the key questions concerning the
"commercial activity" exception that we must
address in this appeal are the following: what conduct is
Merlini's claim against Canada "based on," and
is that conduct "commercial activity"? We turn,
then, to those two questions, starting with the first.
taking up the first question, we begin by observing that
Canada does not dispute that it employed Merlini at its
consulate in Boston, that she is an American citizen and not
a Canadian citizen, that her employment involved only duties
that "were purely clerical," and that her
employment lacked indicia of diplomatic or civil
service. Nor does Canada contest, for purposes of
this appeal, that Merlini was injured while performing her
ordinary clerical duties as Canada's employee in the
consulate in Boston.
if Merlini's complaint is "based on"
Canada's employment of her as a clerical worker doing
routine clerical work at the consulate in Boston, then the
"commercial activity" exception would appear to
apply. See H. Rep. No. 94-1487, at 16 (1976),
reprinted in 1976 U.S.C.C.A.N. 6604, 6615 (describing
"[a]ctivities such as a government's . . .
employment or engagement of laborers, clerical staff
or public relations or marketing agents . . . [as] those
included within the definition [of commercial activity]"
(emphasis added)). In fact, Canada does not appear to argue
State Department, in its amicus brief, however, contends that
Merlini's complaint is solely "based on" the
negligent conduct by her fellow employee that caused the
injury that she suffered during the course of her employment
-- namely, what she alleges in her complaint to have been the
negligent laying of the cord by that employee. The Department
then contends that this conduct does not qualify as
"commercial activity" and thus that the
"commercial activity" exception does not apply.
Rather, the Department contends, the "noncommercial
tort" exception is the only exception that might apply
in Merlini's case, insofar as her action under § 66
can be characterized -- notwithstanding the fact that it
strips the employer of asserting an absence of negligence as
a defense -- as one that seeks recovery "against a
foreign state for personal injury . . . caused by [a]
tortious act or omission." 28 U.S.C. §
1605(a)(5) (emphasis added). The Department thus argues that
we should vacate and remand to permit Merlini to develop her
claim of negligence under the "noncommercial tort"
establish the premise on which this contention rests --
namely, that the suit is based solely on the conduct of
Merlini's fellow employee with respect to the
speakerphone cord -- the Department invokes the Supreme
Court's opinion in Saudi Arabia v. Nelson.
There, the plaintiff argued that his claims of torture and
false imprisonment at the hands of the Saudi Arabian
government were "commercial" in nature because it
was his employment with the Saudi Arabian government that
"led to" those injuries. Nelson, 507 U.S.
at 358. The Supreme Court, however, disagreed. In so
deciding, the Court held that it was wrong to characterize
the plaintiff's claims as being "based on"
"commercial activity" simply because
"commercial activity" "preceded" the
conduct from which those claims arose. Id. Instead,
the Court stressed that while the plaintiff's employment
may have "led to" his injuries at the hands of the
Saudi Arabian government in a temporal sense, the actions
that effectuated those injuries were in no way tied to that
employment and were, therefore, not "commercial" in
nature. Id. The Department argues that the same
conclusion is required here.
disagree. The MWCA requires that Merlini prove only that she
was injured in the workplace in the course of her employment
with Canada. Consequently, Merlini is not required to prove
-- as the plaintiff in Nelson was required to prove
as to his claims for battery, unlawful detainment, wrongful
arrest and imprisonment, false imprisonment, inhuman torture,
disruption of normal family life, and infliction of mental
anguish -- any action by any person that caused the
underlying injury. She has to prove, instead, that she
suffered a workplace injury in the course of her employment
and that the defendant, Canada, was her employer. Given that
courts have held that an employer's maintenance of a
hostile or discriminatory work environment constitutes
"commercial activity" for the purposes of a Title
VII suit against an employer, 42 U.S.C. § 2000e-2(a), --
see, e.g., Holden v. Canadian Consulate, 92
F.3d 918, 922 (9th Cir. 1996); Ashraf-Hassan v. Embassy
of France in United States, 40 F.Supp.3d 94,
102-03 (D.D.C. 2014) -- we fail to see why that same logic
does not apply to Merlini's § 66 claim against her
employer for workplace injuries suffered by employees during
the course of their employment. Hers is no more an ordinary
slip and fall case than those cases are ordinary harassment
cases. Each rests on a claim that makes the employer directly
liable for what happens in the workplace to the employee who
brings the suit.
sure, the Supreme Court has stressed that to find the
gravamen of any personal injury suit, one must look to
"the point of contact -- the place where the boy got his
fingers pinched." Sachs, 136 S.Ct. at 397
(internal quotations omitted). However, nothing in that
precedent requires that we assess that conduct independent of
the plaintiff's actual claim, which, in this case, is a
claim against the employer -- not a fellow employee -- and
requires no proof that any fellow employee engaged in any
the D.C. Circuit's analysis in El-Hadad v. United
Arab Emirates instructive in this regard. 496 F.3d 658
(D.C. Cir. 2007). There, the Court held that that the
gravamen of the plaintiff's complaint, which alleged
breach of contract for wrongful termination, involved
"commercial activity," in part, because it occurred
in the "employment context." Id. at 663.
In choosing to focus on the "employment relationship . .
. as a whole," the Court noted that a
"narrow[er]" framing of the gravamen of the
complaint -- focusing myopically on the plaintiff's
defamation or breach of contract claims divorced from the
employment context -- would "defy analysis" under
the "commercial activity" inquiry. Id. at
663 n.1 (highlighting the difficulty of characterizing a
"breach of contract," without more, as
"commercial" or "non-commercial").
put, Merlini's employment did not simply "le[ad]
to" the injury that she received; it provides the legal
basis for the only cause of action that she has against her
employer for the injury for which she seeks to recover.
See In re Opinion of the Justices, 34 N.E.2d 527,
544 (Mass. 1941) (establishing that chapter 152 §66
"must be interpreted as creating a cause of action in an
employee sustaining an injury 'in the course of his
employment' that is a 'direct ...