Boniface v. Viliena (1st Cir. 2025): New Limits on the Torture Victim Protection Act

Introduction

The First Circuit’s decision in Boniface v. Viliena confronts two fundamental questions about the Torture Victim Protection Act of 1991 (TVPA):

1. Does the statute reach “attempted” extrajudicial killings?
2. Did Congress have constitutional power (“legislative jurisdiction”) to create civil causes of action, under the TVPA, for conduct committed abroad, by one foreign national against another?

Answering the first question, the court created an express circuit-level precedent: the TVPA does not provide a cause of action for attempted extrajudicial killings. As to the second, the panel remanded, instructing the district court to undertake a full constitutional and statutory analysis of Congress’s power to legislate extraterritorially in this context.

Summary of the Judgment

• Jurisdiction – The court affirmed federal-question jurisdiction under 28 U.S.C. § 1331: a TVPA claim “arises under” federal law. It distinguished this from “legislative jurisdiction,” an issue still unresolved.
• Legislative Jurisdiction – The panel vacated the order denying reconsideration and instructed the district court to decide whether the Offenses Clause, treaty power, or other constitutional sources let Congress impose TVPA liability on exclusively foreign conduct between foreign citizens.
• No Attempt Liability – Looking to the text (“subjects an individual to extrajudicial killing”) and statutory structure, the court held that “killing” requires a resulting death; therefore, attempts are outside the TVPA. Verdicts and damages tied to attempted killings were set aside.
• Remaining Issues – If the district court sustains the surviving TVPA counts (torture and completed killing), a new trial on damages will be required; evidentiary and secondary-liability challenges were rejected.

Analysis

1. Precedents Cited and Their Influence

• Kiobel v. Royal Dutch Petroleum (2013) – Provided the “touch and concern” test for the Alien Tort Statute (ATS). Although Kiobel did not directly control TVPA claims, its extraterritoriality reasoning framed Viliena’s constitutional attack.
• RJR Nabisco v. European Community (2016) & Morrison v. NAB (2010) – Supplied the modern two-step presumption-against-extraterritoriality framework that will guide the remand analysis.
• Mohamad v. Palestinian Authority (2012) – Confirmed that only natural persons, not entities, may be sued under the TVPA and recognized indirect liability theories—a foundation for the First Circuit’s acceptance of aiding-and-abetting liability.
• Chowdhury v. Worldtel Bangladesh (2d Cir. 2014); Cisco Systems (9th Cir. 2023); Drummond (11th Cir. 2015) – Cited to show other circuits endorse secondary liability, supporting the First Circuit’s holding.
• Borochov v. Iran (D.C. Cir. 2024); Mamani (11th Cir. 2020) – Confirmed the textual reading that “killing” excludes attempts; the First Circuit aligns itself with this growing consensus.
• Fuld v. PLO (U.S. 2025) (cited in concurrence) – Illustrates the Supreme Court’s heightened caution in extending U.S. civil jurisdiction to foreign actors.

2. Legal Reasoning

a. Subject-Matter vs. Legislative Jurisdiction

The panel drew a sharp conceptual line:

• Subject-Matter Jurisdiction—derives from Article III and § 1331; present whenever a federal cause of action (TVPA) is pled.
• Legislative Jurisdiction—concerns Congress’s constitutional authority to prescribe law for purely foreign events. Failure here voids the cause of action itself, not the court’s adjudicatory power.

b. No Attempt Liability

1. Plain meaning: dictionaries define “killing” as causing death.
2. Structure: damages for an extrajudicial “killing” go to the decedent’s representative, signaling Congress contemplated a death.
3. Absence of express attempt language contrasts with statutes where Congress meant to capture attempts (e.g., 18 U.S.C. § 2332b).
4. Persuasive authority: the First Circuit joins D.C. & Eleventh Circuits in excluding attempts.

c. Secondary Liability Survives

After Central Bank, courts scrutinize each statute for implied aiding-and-abetting civil liability. Examining the verb “subjects” and legislative history (“abetted, assisted”), the court held the TVPA encompasses aiding-and-abetting. On the facts, Mayor Viliena’s distribution of weapons and orders to shoot satisfied “knowing and substantial assistance.”

d. Remand on Legislative Authority

The district court must now tackle:

• Whether the TVPA text clearly rebuts the presumption against extraterritoriality for purely foreign disputes.
• Whether the Offenses Clause, treaty power (especially implementation of the Convention Against Torture), or other sources permit Congress to supply civil remedies for foreign-to-foreign conduct.
• Whether such application offends international comity or customary international law.

3. Potential Impact

• Immediate – Plaintiffs across the country can no longer plead “attempted extrajudicial killing” under the TVPA; district courts must dismiss or strike such counts.
• Strategic Pleading – Counsel will redraft complaints to emphasize completed killings and torture; ATS claims will remain constrained by Kiobel/Sosa.
• Damages Calculations – Where mixed verdicts include an attempt theory, new trials on damages may be necessary.
• Constitutional Litigation – The remand invites the first definitive lower-court opinion on Congress’s Offenses-Clause power to create civil claims between foreign nationals—an issue likely to reach the Supreme Court.
• Human-Rights Litigation Posture – Advocates may pursue foreign-state-torture cases only when a U.S. nexus exists (e.g., defendant present in the U.S.) to strengthen constitutional footing.

Complex Concepts Simplified

Subject-Matter Jurisdiction

The court’s basic authority to hear a type of case, supplied here by 28 U.S.C. § 1331 because the TVPA is federal law.

Legislative Jurisdiction

Whether Congress itself had constitutional power to regulate the particular conduct. If Congress lacked power, the statute cannot be applied even though the court has subject-matter jurisdiction.

Presumption Against Extraterritoriality

A rule of statutory interpretation: unless Congress clearly says otherwise, U.S. laws apply only within U.S. territory.

Offenses Clause

Article I, § 8, cl. 10 of the Constitution lets Congress “define and punish… Offences against the Law of Nations.” Its scope—especially for civil, purely foreign disputes—is contested.

Aiding and Abetting

Liability for intentionally and substantially helping someone else commit a wrongful act.

Conclusion

Boniface v. Viliena crystallises two important guideposts for human-rights litigation under U.S. law:

1. The TVPA’s civil remedy stops at completed extrajudicial killings; “attempts” are out of bounds.
2. The constitutional compass for extraterritorial TVPA suits—especially where no party is a U.S. national and no conduct occurred here—remains unsettled. The First Circuit has signalled that district courts must confront, not sidestep, the question of Congressional power.

Going forward, practitioners must heed the decision’s textualist approach and be prepared to litigate the underlying constitutional questions. If other circuits follow suit, the Supreme Court may soon be called on to define the outer limits of Congress’s authority to provide civil redress for human-rights abuses committed wholly abroad.