District Court Rejects Constitutional Challenge to TVPA

 

The Plaintiffs

On June 9, 2026, in Boniface v. Viliena, Judge Allison D. Burroughs (District of Massachusetts) rejected a challenge to the constitutionality of the Torture Victim Protection Act (TVPA), holding that the act applies extraterritorially to torture and extrajudicial killing between aliens and that Congress had authority to pass the act under the Offenses Clause of the U.S. Constitution.

On a prior appeal, the First Circuit directed the district court to address these questions in the first instance. Although a second appeal seems inevitable, I expect the district court’s decision to be upheld.

Torture and Killing in Haiti

The defendant Jean Morose Viliena was mayor of Les Irois, Haiti. As I described in an earlier post, a jury found him liable for torture, extrajudicial killing, and attempted extrajudicial killing under the TVPA, awarding three Haitian plaintiffs a total of $15.5 million in compensatory and punitive damages.

On appeal, the First Circuit held that attempted extrajudicial killing was not actionable under the TVPA, but that Viliena could be held liable for aiding and abetting torture and extrajudicial killing. Viliena also argued that the TVPA did not apply extraterritorially claims between foreign citizens based on conduct abroad and that, if it did, Congress lacked constitutional authority to pass it. Viliena had adequately raised these arguments below, the court of appeals found, but the district court did not address them. So, the First Circuit remanded to give Judge Burroughs an opportunity to do so. (Disclosure: I joined an amicus brief supporting the plaintiffs on these two questions before the First Circuit.)

Judge Sandra Lynch filed a concurring opinion giving some credence to Viliena’s extraterritoriality arguments. And Judge Burroughs was careful to address these concerns in her opinion on remand.

Does the TVPA Apply Extraterritorially?

As Judge Burroughs noted, citing Judge Lynch’s concurrence and one of my articles, the Supreme Court has adopted a two-step framework for determining whether a federal statute applies extraterritorially. At step one, a court looks for a “clear indication” of extraterritoriality. If there is no clear indication, then at step two, a court asks whether the case requires “no more than domestic application” of the statute. In this case, it was unnecessary to go beyond step one because Judge Burroughs found that the TVPA “contains a clear affirmative indication of extraterritorial effect.”

To be sure, the TVPA does expressly say that it applies extraterritorially. In her concurring opinion, Judge Lynch had contrasted its language with that of the criminal torture statute, 18 U.S.C. § 2340A, which applies to torture “outside the United States.” But as Judge Burroughs noted, the Supreme Court has not required an express statement of extraterritoriality at step one and has repeatedly said that context may be consulted as well.

The TVPA provides that “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation,” subjects another to torture or extrajudicial killing shall be liable for damages. “[M]ost instances of torture under the actual authority of a foreign nation will occur in other lands,” Judge Burroughs noted, and “[t]he same is true of extrajudicial killing under color of a foreign nation’s law.” “The fact that most, if not all, acts covered by the plain language of this provision will occur in other lands between foreign citizens,” she continued, “indicates a clear intent for the statute to apply extraterritorially.”

Judge Burroughs also pointed to § 2(b) of the TVPA, which requires exhaustion of “adequate and available remedies in the place in which the conduct giving rise to the claim occurred.” “The provision contemplates claims arising in places where there is no meaningful remedy at law for torture or extrajudicial killing,” she reasoned, “which would not make sense if claims could only arise in the United States.”

The court found additional support for applying the TVPA extraterritorially in its legislative history.

Both the Senate and the House reports emphasize the TVPA’s provision of a remedy for acts committed in “state[s] that … [do not] adhere[ ] to the rule of law,” S. Rep. No. 102-249, at 3, and countries that have suffered a “general collapse of democratic institutions [that] … rarely leaves the judiciary intact,” H. Rep. No. 102-367, at 3. This emphasis supports the conclusion that the wrongs to be remedied by the TVPA include those occurring in other countries.

Judge Burroughs also noted the legislative history’s endorsement of the Second Circuit’s decision in Filartiga v. Pena-Irala (1980), which permitted claims under the Alien Tort Statute (ATS) between two foreign citizens for torture committed abroad.

Although the parties did not raise it, Judge Burroughs went out of her way to address another argument that Judge Lynch had raised in her concurrence—that Congress passed the TVPA to implement the Convention Against Torture (CAT), to which the Senate consent on the understanding that it did not require countries to create civil remedies for torture abroad. Essentially, Judge Burroughs found that Congress’s intent was broader than complying with the CAT (a proposition that should be obvious simply from the fact that the TVPA addresses not just torture but also extrajudicial killing). “[T]he TVPA may have partially implemented the CAT by providing a remedy at law for certain kinds of torture,” Judge Burroughs wrote, “but the Court is not persuaded that the reverse proposition is true—that the CAT’s ratification history should be read to impose a ceiling on the relief available under the TVPA.”

The court also declined to read an implied jurisdictional limitation into the TVPA. Judge Burroughs distinguished the Supreme Court’s decision in RJR Nabisco, Inc. v. European Community (2016) (discussed in last week’s Throwback Thursday post), holding that RICO’s civil cause of action did not reach as far as RICO’s criminal provisions. In RJR Nabisco, she noted, there was “a distinct textual hook providing a structural reason to think that Congress intended to limit jurisdiction to a subset of the conduct described by those statutes’ substantive provisions.” With the TVPA, by contrast, “the right of action … is contained in its substantive provisions.”

Finally, Judge Burroughs rejected Viliena’s argument that the TVPA should be read narrowly to avoid the constitutional question of Congress’s authority. The doctrine of constitutional avoidance, she noted, applies only when a statute is “susceptible of more than one construction.” “Here, the statutory language is not susceptible of another construction,” she concluded, and so “the Court will reach the constitutional question.”

Is the TVPA Constitutional?

In their briefs, both sides focused on the Offenses Clause of the Constitution as the source of Congress’s authority to pass the TVPA, so Judge Burroughs did too. The Offenses Clause provides, in relevant part, that Congress has the power to “define and punish … Offences against the Law of Nations.” Viliena argued that the clause gives Congress authority to punish only offenses that were established when the Constitution was ratified, whereas plaintiffs argued that Congress may also punish violations of modern international law.

The district court concluded that “the best understanding of the scope of the Offences Clause … is that it ‘expands and contracts with changes in customary international law’” (quoting United States v. Bellaizac-Hurtado (11th Cir. 2012)). Judge Burroughs looked to the Supreme Court’s reading of “the law of nations” in the ATS in Sosa v. Alvarez-Machain(2004) as a guide to understanding the same phrase in the Offenses Clause. (Sarah Cleveland and I have explained that the ATS and the Offenses Clause both find their origins in the same 1781 resolution of the Continental Congress.) “If the law of nations evolves such that new torts are capable of being recognized at common law under the ATS,” Judge Burroughs reasoned, “then Congress’s power under the Offences Clause must also be capable of expanding in relation to shifting international norms.”

The district court only briefly addressed whether the Offenses Clause allows Congress to create not just criminal liability but also civil liability. “Though the sanctions at issue here are civil, not criminal, the Court sees no reason that Congress’s jurisdiction to prosecute these offenses should be limited to providing criminal sanctions as opposed to civil remedies,” Judge Burroughs wrote. The Supreme Court has never addressed the question, but Congress has previously relied on the Offenses Clause to create civil liability. The ATS, enacted in 1789, is an early example; the Foreign Sovereign Immunities Act, enacted in 1976, is a more recent one. And the history of the Offenses Clause (recounted in my article with Sarah) strongly suggests that the Framers sought to give Congress authority to create civil remedies.

Conclusion

In my view, Judge Burroughs got both questions right and fully addressed the concerns that Judge Lynch raised in her concurring opinion. Although Viliena will likely appeal, I suspect that the First Circuit will affirm. These are simply not close questions. The text of the TVPA unambiguously shows that it applies extraterritorially, and the history of the Offenses Clause demonstrates that Congress had authority to pass such a statute.

Unfortunately for the plaintiffs, these issues are not the only ones with which they have to contend. Recall that the First Circuit held that attempted extrajudicial killing is not actionable under the TVPA. Because the jury did not distinguish among the various claims in awarding damages, the First Circuit directed the district court to hold a new trial on damages.

The district court also instructed the first jury that liability under the TVPA could be based on aiding and abetting. Although the First Circuit agreed, that question is now before the Supreme Court in Cisco Systems, Inc. v. Doe.  If the Court holds that aiding and abetting is not actionable under the TVPA, there may need to be a new trial on liability as well.