First Circuit Remands Constitutionality of the TVPA to District Court

In Boniface v. Viliena, a Massachusetts jury found a former Haitian mayor liable under the Torture Victim Protection Act (TVPA) for extrajudicial killing, attempted extrajudicial killing, and torture, awarding the three plaintiffs $15.5 million in compensatory and punitive damages. On appeal to the First Circuit, the defendant’s principal arguments were (1) that the TVPA does not apply extraterritorially to claims between aliens based on conduct outside the United States and (2) that, if it does, Congress lacked constitutional authority to enact it. (Disclosure: I joined an amicus brief supporting the plaintiffs on these two questions.)

On July 21, 2025, the First Circuit issued its decision. Writing for the panel, Judge Lara Montecalvo decided several important questions. She held that the TVPA does not cover attempted (as opposed to completed) extrajudicial killings and that the TVPA does cover aiding and abetting claims. But the court of appeals did not answer the critical questions about the TVPA’s geographic scope and Congress’s authority to enact it, remanding them to the district court to address in the first instance. This post unpacks the First Circuit’s opinion and offers some views on how the district court should resolve the outstanding issues on remand.

Human Rights Violations in Haiti

I will summarize the facts in the light most favorable to the jury’s verdict, just as the First Circuit did. The defendant Jean Morose Viliena was mayor of Les Irois, Haiti. In 2007, a dispute over trash collection escalated into violence, during the course of which Viliena threatened plaintiff David Boniface, a human right advocate. Later in the day, Viliena went to Boniface’s house with twenty armed supporters and, finding him not at home, shot and killed his younger brother.

The following year, Viliena and a crowd of supporters attacked a radio station that had been critical of the mayor. Viliena armed the mob by handing out guns. Plaintiff Nissage Martyr, who owned the house where the station was located, and plaintiff Juders Ysemé, who was present at the house, were beaten by Viliena himself. One of his henchmen then shot the two men at Viliena’s direction, causing them pain and permanent injuries.

Viliena obtained lawful U.S. permanent resident status in 2008 and moved permanently to the United States in 2009. He was subsequently convicted of immigration fraud for lying about whether he had been involved in human rights violations and is currently serving a nine-year sentence in federal prison.

The Claims

Enacted in 1992, the TVPA creates a civil cause of action against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation … (1) subjects an individual to torture … or … (2) subjects an individual to extrajudicial killing.”

Plaintiffs sued Viliena in 2017 under the TVPA for the extrajudicial killing of Boniface’s brother, the attempted extrajudicial killing of Martyr and Ysemé, and the torture of Martyr and Ysemé. Plaintiffs also brought claims under the Alien Tort Statute (ATS) for torts in violation of international law. Martyr died suddenly two days after the claims were filed and was replaced as a plaintiff by his son.

Viliena successfully moved to dismiss the ATS claims as impermissibly extraterritorial under the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. (2013), but the district court rejected his argument that Kiobel also required dismissal of the TVPA claims. On a motion for reconsideration, Viliena argued that “the exercise of jurisdiction over domestic crimes within another country between persons who are not United States citizens falls outside the limits of the authority vested in Congress by the Constitution,” but the district court rejected this argument as another attempt to argue that Kiobel applies to the TVPA.

The jury found Viliena liable for the extrajudicial killing of Boniface’s brother, awarding Boniface $1.75 million. The jury also found Viliena liable for the attempted extrajudicial killings and torture of Martyr and Ysemé, awarding $1.25 million to Martyr’s son and $1.5 million to Ysemé. Finally, the jury awarded $11 million in punitive damages.

The First Circuit’s Opinion

Attempted Extrajudicial Killing

On appeal, the First Circuit agreed with Viliena that the TVPA’s cause of action covers completed extrajudicial killings but not attempted ones. This holding accords with the D.C. Circuit’s recent decision in Borochov v. Islamic Republic of Iran (2024), about which Ingrid Brunk has written. Technically, Borochov interpreted the Foreign Sovereign Immunities Act’s (FSIA) cause of action for state-sponsored terrorism, but Congress defined “extrajudicial killing” to have the same meaning in this provision of the FSIA as in the TVPA.

Judge Montecalvo began with dictionary definitions of “killing.” “These definitions make clear,” she wrote, “that death is a necessary result of a killing.” This interpretation found confirmation in the TVPA’s provision for awarding damages to “the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.” If the TVPA’s cause of action covered attempted extrajudicial killing, the court reasoned, then only the survivor’s legal representative would be able to recover damages, and not the survivor himself. “The oddness of this alternative interpretation,” Judge Montecalvo concluded, “confirms that the TVPA contemplates a cause of action only for completed, not attempted, extrajudicial killings.”

Aiding and Abetting

On appeal, Viliena also argued that the TVPA does not encompass claims of secondary liability. But the First Circuit disagreed, holding that the TVPA permits aiding and abetting claims. This holding accords with the Ninth Circuit’s recent decision in Doe v. Cisco Systems, Inc. (2023), which I have previously discussed. Cisco has petitioned for Supreme Court review of this question, and the Court has called for the views of the Solicitor General.

The TVPA provides civil liability against someone who “subjects an individual to torture.” Again, Judge Montecalvo reached for her dictionary, noting that “[t]o ‘subject’ means ‘[t]o cause to undergo some action, agent, or operation.’” “Congress could have restricted [the TVPA] to direct liability by instead using the term ‘tortures’ or ‘inflicts torture,’” she reasoned. By using the broader phrase “subjects … to torture,” Congress created liability for actions that brought about torture but did not directly inflict it.

This reading finds support in the TVPA’s legislative history, which refers to “lawsuits against persons who ordered, abetted, or assisted in the torture” and states that a defendant “need not have personally performed or ordered the abuses in order to be held liable.” The Supreme Court has also noted that “the TVPA contemplates liability against officers who do not personally execute the torture or extrajudicial killing.”

Extraterritoriality of the TVPA

Viliena’s principal arguments on appeal were that the TVPA does not apply—and cannot apply—extraterritorially to claims between foreign citizens based on conduct abroad. He framed these issues in terms of subject matter jurisdiction, arguing that the district court lacked authority to hear plaintiffs’ TVPA claims because Congress lacked authority to enact the statute. As Judge Montecalvo explained, however, federal courts have federal question jurisdiction whenever federal law creates the cause of action. Viliena’s extraterritoriality arguments were merits arguments about legislative jurisdiction—Congress’s authority to pass a statute—not subject matter jurisdiction arguments about the federal courts’ authority to hear the case.

The court of appeals described Viliena’s briefing on appeal as “muddy” and noted that his briefs to the district court were “similarly unclear.” Still, Judge Montecalvo concluded, he had sufficiently raised his extraterritoriality arguments before the district court, and the district court had not addressed them.

To provide guidance to the district court (and perhaps to the parties’ lawyers too), Judge Montecalvo identified “two distinct questions” to be addressed on remand:

First, as a matter of statutory interpretation, does the TVPA provide a cause of action for the facts here? Second, if the TVPA does provide such a cause of action, is that constitutional? In other words, did Congress have the power to authorize civil liability in this case, for acts committed by one foreign national upon another foreign national in a foreign country?

Judge Sandra Lynch filed a concurring opinion in which she expressed doubts that the TVPA applies extraterritorially in cases like this. I will address her concerns as I discuss each of Judge Montecalvo’s questions below.

Statutory Interpretation

Federal statutes are subject to a presumption against extraterritoriality, a point that Viliena raised in his First Circuit  brief and that Judge Lynch echoed in her concurring opinion. “[W]hen a statute gives no clear indication of an extraterritorial application,” Judge Lynch wrote (quoting Kiobel v. Royal Dutch Petroleum Co. (2013)), “it has none.” “The TVPA,” she continued, “appears to contain no explicit statement that it applies to entirely foreign conduct.”

Judge Lynch contrasted the TVPA’s language with that of the criminal torture statute, 18 U.S.C. § 2340A, which criminalizes torture “outside the United States,” “irrespective of the nationality of the victim or alleged offender” so long as the alleged offender is present in the United States. As further counterexamples, she cited the Antiterrorism Act, 18 U.S.C. § 2331 (defining “international terrorism” as terrorism that “occur[s] primarily outside the territorial jurisdiction of the United States”), the genocide statute, 18 U.S.C. § 1091 (criminalizing genocide “regardless of where the offense is committed”), and the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. § 1596(a) (creating “extraterritorial jurisdiction” over trafficking offenses under certain conditions).

Here is what the text of the TVPA does say: “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation” (emphasis added), subjects another to torture or extrajudicial killing shall be liable for damages. As Maggie Gardner has noted, “[i]t is hard to imagine a scenario in which an individual could engage in such activity within the United States while acting under the authority of a foreign nation—or at least, the rarity of such a scenario renders implausible a reading of the TVPA that limits it to U.S. territory.” Moreover, the Supreme Court has made clear in RJR Nabisco, Inc. v. European Community (2016) that, to rebut the presumption, “an express statement of extraterritoriality is not essential. ‘Assuredly context can be consulted as well’” (quoting Morrison v. Australia National Bank (2010)).

Some relevant context is provided by the TVPA’s legislative history. “Judicial protection against flagrant human rights violations is often least effective in those countries where such abuses are most prevalent,” the Senate Report noted. “A state that practices torture and summary execution is not one that adheres to the rule of law. Consequently, the Torture Victim Protection Act (TVPA) is designed to respond to this situation by providing a civil cause of action in U.S. courts for torture committed abroad” (emphasis added).

The legislative history further explains that the TVPA was intended to supplement the ATS by “establish[ing] an unambiguous basis for a cause of action that has been successfully maintained under [that provision].” As a paradigmatic case, the Senate Report discussed Filartiga v. Pena-Irala (2d Cir. 1980), a claim between aliens based on torture outside the United States. It was cases like this that Congress had in mind when it passed the TVPA, although Congress additionally extended the civil remedy “to U.S. citizens who may have been tortured abroad.” In sum, it could hardly be clearer that Congress intended the TVPA to apply extraterritorially to claims between aliens.

Judge Lynch worried that “extending the TVPA to these facts violates notions of ‘prescriptive comity’” and might provoke “retaliatory” legislation from other countries. As I have described elsewhere in detail, international comity is not a freestanding doctrine but a principle of deference that informs a variety of doctrines. “Prescriptive comity” is manifested principally in the presumption against extraterritoriality. When that presumption is rebutted by a clear indication of extraterritoriality—as it is here—prescriptive comity has no further role to play.

With respect to retaliatory legislation, Judge Lynch cited Justice Thomas’s concurring opinion in Fuld v. Palestine Liberation Organization (2025). But, of course, Justice Thomas went on to say, “that possibility is no basis for erecting constitutional barriers here. The ‘field of foreign affairs’ requires ‘delicate judgments, involving a balance that is the prerogative of the political branches to make,’ and these judgments are ‘entitled to special respect’” (quoting Jesner v. Arab Bank, PLC (2018) (plurality opinion)). Congress knew what it was doing when it passed the TVPA, and it is not the place of courts to second guess its decisions.

Apart from the presumption against extraterritoriality, there is the Charming Betsy canon that “an act of congress ought never to be construed to violate the law of nations if any other possible construction remains.” But, as § 413 of the Restatement (Fourth) of Foreign Relations Law notes, international law recognizes a state’s jurisdiction to prescribe law for “offenses of universal concern … even if no specific connection exists between the state and the persons or conduct being regulated.” Congress understood this too. “[A]ccording to the doctrine of universal jurisdiction,” the Senate Report on the TVPA observed, “the courts of all nations have jurisdiction over ‘offenses of universal interest.’”

A final canon of interpretation that Judge Lynch mentioned briefly near the end of her concurring opinion is the canon of constitutional avoidance, which requires courts to “ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided” (quoting Perttu v. Richards (2025)). Here, however, it is not “fairly possible” to read the TVPA—a statute that expressly refers to torture and extrajudicial killing “under actual or apparent authority, or color of law, of any foreign nation”—as limited to the territory of the United States. Fortunately, there is no need to avoid the constitutional question in this case because the answer is clear.

Constitutional Authority

In enacting the TVPA, Congress relied expressly on its power under the Offenses Clause to “define and punish … Offences against the Law of Nations.” Before the First Circuit, Viliena argued that the Offenses Clause does not allow Congress to impose civil liability for conduct that takes place outside the United States between citizens of a foreign country. The history of this clause, which Sarah Cleveland and I have discussed at length, rebuts this argument.

William Blackstone, to whom the framers of the Constitution often looked for guidance, identified three “principal offences against the law of nations … 1. Violation of safe-conducts; 2. Infringement of the rights of ambassadors; and, 3. Piracy.” Of these offenses, piracy is by definition extraterritorial—Blackstone described it as “robbery and depredation upon the high seas.” Exercising its authority under the Offenses Clause, Congress criminalized piracy in the 1790 Crimes Act. Although the Supreme Court initially interpreted this offense not to apply to foreign subjects, Congress (again using its Offenses power) amended the statute to apply “any person or persons whatsoever” who “on the high seas, commit the crime of piracy, as defined by the law of nations.”

Another of Blackstone’s three offenses, infringement of the rights of ambassadors, would not necessarily occur abroad but could involve only noncitizens, as illustrated by the 1784 Marbois Affair, in which the Secretary of the French Legation was assaulted by another French citizen on the streets of Philadelphia. The 1790 Crimes Act also criminalized infringements of the rights of ambassadors. In short, the First Congress—of which many of the framers were members—understood the Offenses Clause to apply to extraterritorial offenses and to those involving only noncitizens.

The First Congress used its authority under the Offenses Clause not just to create criminal offenses but also to permit civil claims in federal courts by enacting the ATS as part of the 1789 Judiciary Act. The ATS gives federal courts jurisdiction over “of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” (emphasis added). As the Supreme Court has noted, piracy and infringement of the rights of ambassadors were among the offenses Congress had in mind when it wrote this provision. Congress again relied on the Offenses Clause in a civil context when it enacted the Foreign Sovereign Immunities Act of 1976. “As used in the Offenses Clause,” Beth Stephens has explained, “‘offenses’ encompasses all violations of international law, regardless of whether criminal or civil sanctions apply, and the power to ‘define and punish’ includes the power to impose civil or criminal regulations or sanctions.” To be sure, the Supreme Court has applied the presumption against extraterritoriality to limit the implied cause of action under the ATS in recent years. But the Court has never questioned Congress’s constitutional authority to enact the ATS for offenses like piracy.

Before the First Circuit, Viliena also argued that Congress’s authority under the Offenses Clause is limited to violations of the law of nations as it was known in 1787-1789. This seemingly originalist argument is deeply ahistorical. As I have shown elsewhere, the framers knew that the law of nations had evolved and expected that it would continue to do so. Early writings and Supreme Court decisions are full of references to the “modern law of nations,” which early Americans understood to be different from (and better than) what preceded it. “It does not follow,” Justice Story wrote in 1822, reflecting this view, “that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations.”

The TVPA rests not just on customary international law but also, in part, on the Convention Against Torture (CAT). The Senate consented to the CAT in 1990 (although the President did not ratify it until 1994). Congress intended the TVPA to “carry out the intent” of the CAT by “ensuring that torturers within their territories are held legally accountable for their acts.” The Offenses Clause applies to treaties as well as to customary international law (a proposition Sarah and I documented at great length). And under Missouri v. Holland(1920), which remains binding Supreme Court precedent, the Necessary and Proper Clause in combination with the Treaty Power gives Congress authority to implement even treaties that otherwise exceed its Article I, Section 8 powers.

In her concurring opinion, Judge Lynch pointed out that the United States ratified the CAT on the understanding that Article 14’s obligation to provide compensation to victims applies only to torture within a country’s own territory. This is correct so far as it goes. But there is no reason to think that Congress’s authority under the Offenses Clause (or the Necessary and Proper Clause) is limited to offenses that the United States is obligated by international law to punish. To return to the example of piracy, during the eighteenth century, as today, every nation had “a right to punish piracy.” But there was no obligation to do so.

More fundamentally, it is a mistake to focus narrowly on the U.S. understanding of the CAT’s Article 14 in evaluating the constitutionality of the TVPA. Torture is a violation of customary international law, not just this treaty. So is extrajudicial killing, which is not proscribed by the CAT at all. Both are “Offenses against the Law of Nations” for which Congress may provide civil and criminal sanctions, even if they occur abroad and involve only noncitizens.

Conclusion

The TVPA creates liability for torture and extrajudicial killing “under actual or apparent authority, or color of law, of any foreign nation,” and its legislative history confirms that Congress meant this cause of action to cover such offenses occurring abroad and involving only noncitizens. This is sufficient to rebut the presumption against extraterritoriality. The TVPA also falls well within Congress’s authority under the Offenses Clause. Piracy, which was one of the offenses the framers specifically had in mind, was by definition extraterritorial, and the First Congress acted not only to punish it criminally but also to provide for civil liability.

It is unfortunate that the First Circuit felt the need to remand these questions to the district court—particularly since the district court’s failure to address them initially was the result of Viliena’s own “muddy” briefing. I have no doubt, however, that the district court and the First Circuit will reach the right conclusions in the end.