United States Court of Appeals
                      For the First Circuit


No. 24-1411

         DAVID BONIFACE; NISSANDÈRE MARTYR; JUDERS YSEMÉ,

                      Plaintiffs, Appellees,

                               v.

                       JEAN MOROSE VILIENA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Allison D. Burroughs, U.S. District Judge]


                             Before

                   Montecalvo, Circuit Judge,
                   Breyer,* Associate Justice,
                    and Lynch, Circuit Judge.


     Peter Justin Haley, with whom Nelson        Mullins    Riley   &
Scarborough LLP was on brief, for appellant.

     Diana Li Kim, with whom Bonnie Lau, Brian R. Matsui, Morrison
& Foerster LLP, Daniel McLaughlin, Carmen K. Cheung, Center for
Justice & Accountability, Philip A. O'Connell, Jr., and Dentons US
LLP were on brief, for appellees.

     William R. Stein, Shayda Vance, and Hughes Hubbard & Reed LLP
on brief for Ambassadors Stephen J. Rapp and David J. Scheffer,
amici curiae in support of appellees.

     * Hon. Stephen G. Breyer, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     Aram A. Gavoor and Administrative Law, Issues & Appeals
Clinic, George Washington University Law School, on brief for
Professors of International Law, amici curiae in support of
appellees.



                        July 21, 2025
             MONTECALVO,     Circuit    Judge.         This   appeal     stems     from

events that took place in Haiti in 2007-08.                   In March of 2023, a

jury in the U.S. District Court for the District of Massachusetts

found Jean Morose Viliena liable to plaintiffs David Boniface,

Nissandère Martyr, and Juders Ysemé for several claims under the

Torture Victim Protection Act ("TVPA"), 

Stat. 73 (1992), 

 (codified at note), a U.S. law

that   provides    causes    of   action    for    torture      or   extrajudicial

killings committed abroad under the color of foreign law.                          The

jury   found    Viliena     liable   for    the    extrajudicial         killing    of

Boniface's      brother,      Eclesiaste          Boniface;       the     attempted

extrajudicial killings of Ysemé and of Nissandère Martyr's father,

Nissage Martyr ("Martyr"); and the torture of Ysemé and of Martyr.

The jury awarded compensatory and punitive damages.

             Viliena   now   brings     a   variety     of    challenges      to   the

judgment and the damages awards.               He contends that all of the

findings of liability should be vacated, either because federal

courts lack subject-matter jurisdiction or because Congress could

not and did not authorize causes of action under the TVPA where

the conduct occurred abroad between foreign nationals; in other

words,   that     Congress    lacked    what      he    generally       has   labeled

"legislative" jurisdiction.            He also argues that at least the

attempted extrajudicial killing findings of liability should be

vacated because the TVPA, by its terms, does not provide for


                                       - 3 -
attempt liability.       In addition, he brings a variety of specific

challenges to the trial and the damages awards, including the

availability      of    secondary      liability     under       the   TVPA,      the

sufficiency of the evidence as to specific elements, the admission

of an expert's testimony, and the granting of punitive damages.

           For the reasons that follow, we conclude that we have

subject-matter jurisdiction.           We vacate, in part, the denial of

the motion for reconsideration and remand for the district court

to address Viliena's argument that Congress does not have the power

to provide any cause of action under the TVPA here, where the

conduct at issue occurred outside of the United States and between

foreign citizens.        In addition, given the impact the available

causes of action will have on this analysis, we address -- and

ultimately agree with -- Viliena's contention that the TVPA does

not provide a cause of action for attempted extrajudicial killing.

And,   further,    in    the   event     the    district     court     allows      the

extrajudicial     killing      and    torture     claims    to    proceed        after

addressing legislative jurisdiction, we address the remaining

challenges to the trial rulings, the jury's findings of liability

on those claims, and the damages awards.

                           I. Factual Background

           Because      Viliena      challenges    the     sufficiency      of    the

evidence, we state the relevant facts in the light most favorable

to the jury verdict.       Alvarado-Santos v. Dep't of Health of P.R.,


                                       - 4 -


 (1st Cir. 2010) (citing Visible Sys. Corp. v.

Unisys Corp., 

 (1st Cir. 2008)).

             Plaintiffs' claims arise out of two events that took

place   in   a    town   called    Les    Irois    in    Haiti:    the   killing    of

Eclesiaste Boniface in July 2007 and a violent attack on the local

radio station in April 2008.

             Viliena took office as the mayor of Les Irois shortly

before these events, in June 2007.               Viliena's responsibilities as

mayor included administering and managing the town of Les Irois.

Viliena ran for mayor as a member of the MODEREH political party.

A community-based armed group called KOREGA provided "muscle" to

support Viliena as mayor, and Viliena and KOREGA used violence to

suppress political opposition in each of the two incidents in which

plaintiffs were harmed.           Viliena was often seen around town with

other community members affiliated with KOREGA, including Villeme

Duclona and Hautefort Bajon, both of whom we will discuss in more

detail later.

               A. July 2007 Killing of Eclesiaste Boniface

             On July 27, 2007, a resident of Les Irois named Ostanie

Mersier got into a dispute with the town's sanitation department

over the placement of her garbage in front of her house.                           The

sanitation       department   refused      to     collect    Mersier's     personal

garbage while cleaning the street. When Mersier refused to collect

her   trash,     the   sanitation    department         summoned   Mayor   Viliena.


                                         - 5 -
Viliena argued with her and then slapped her in the face.     Viliena

then arrested Mersier and brought her to the house of Judge St.

Jean Bell to resolve the dispute.

            A crowd of people followed, including plaintiff David

Boniface, who was trained as a human rights advocate.         Viliena

asked the judge to make Boniface leave, saying that the issue

"ha[d] nothing to do with" human rights.      Boniface responded that

everyone has rights.    Hautefort Bajon, whom Viliena had hired as

Director of City Hall, reprimanded Boniface for speaking harshly

and Viliena stormed out.    Outside of the judge's house, Viliena

told Boniface, "Later on I'm coming for you."

            After Viliena left, Judge Bell told Boniface to go home

because his life had just been threatened.           As Boniface was

leaving, Viliena returned, accompanied by more people.     One member

of the group began "swinging at" Boniface.      Bajon came out of the

judge's house to join Viliena.      Boniface felt "very threatened"

and tried to distance himself from Viliena and his associates by

walking backwards away from them.       A pastor pulled Boniface into

a church for safety.     Community members soon came to accompany

Boniface so that he could walk home, but Viliena and his supporters

followed.   Someone with Viliena threw a bicycle at Boniface, which

a community member intercepted.     Bajon then looked at Viliena and

said, "leave him alone, we'll deal with him later."           Viliena

nodded, and he and his associates left.


                                - 6 -
            Later that day, Boniface and his mother went to church

while his younger brother Eclesiaste stayed home.          Viliena and

about twenty of his supporters, armed with guns, machetes, and

clubs, went to Boniface's home.          Viliena and Bajon were each

holding a gun.      When someone in the mob called for Boniface,

Eclesiaste responded that his brother was not home. Another member

of the crowd told Eclesiaste to come outside to get something for

Boniface.    When Eclesiaste came out, Viliena shot him.1          One of

Viliena's supporters then picked up a cinderblock and dropped it

on Eclesiaste's head.      The mob left Eclesiaste's body in the

street.

            Viliena's   group   then   surrounded   the   church    where

Boniface and his mother were worshipping, preventing them from

leaving.    Boniface and his mother sheltered at the pastor's home

overnight in fear for their lives.        The next morning, Boniface

went to Judge Bell's house to ask him to start an investigation

into his brother's killing and brought the judge to his brother's

body.    Boniface and a crowd of neighbors carried Eclesiaste's body

to Viliena's office at City Hall to demand that Viliena bury the



     1 Another witness testified that Bajon shot Eclesiaste after
Viliena said, "As we don't find David [Boniface], let's shoot
Eclesiaste, like, in his place." Because we take the facts in the
light most favorable to the jury verdict, Alvarado-Santos v. Dep't
of Health of P.R., 

 (1st Cir. 2010), we assume
that the jury credited the testimony that Viliena himself shot
Eclesiaste.


                                 - 7 -
body in accordance with a local tradition that killers bury their

victims.    Viliena refused and called police officers, who hit

Boniface and the others with the back of their shotguns and ordered

everyone to leave.     Boniface and his family buried Eclesiaste

themselves.

            Boniface was forced to leave Les Irois in 2017, after

Viliena's father publicly threated to kill him.          Since then,

Boniface has been living in hiding, separated from his wife and

children.

                 B. April 2008 Radio Station Attack

            The remaining claims arise from an attack on the radio

station in Les Irois.     Les Irois had one radio station, called

"New Vision," which witnesses described as a source of pride for

the community.   The radio station was located at Nissage Martyr's

house, and plaintiff Juders Ysemé spent his free time there.

            The radio station was founded by Orelien Joaquim, a

member of a political party called the Struggling People's Party,

which opposed MODEREH.   While Joaquim was running for town deputy,

he promised to establish a radio station in Les Irois.   After being

elected, Joaquim fulfilled that campaign promise by establishing

New Vision.    Some of the political discussions on the radio were

critical of Viliena as mayor.    Viliena opposed the radio station

and first asked the civil protection agency, which reported to him

as the mayor, to take charge of the station.   The civil protection


                                - 8 -
agency refused.    Viliena told the civil protection agency, "I will

do this myself."

          Soon after, Joaquim invited Viliena to call in to the

radio station.     On the air, Viliena yelled at Joaquim, vowing to

shut down the station and destroy it.

          On April 8, 2008, Viliena and a crowd of people attacked

the radio station.     Around noon, witnesses saw Viliena and another

man head out of town on a motorcycle.      The two men returned about

an hour and a half later with a backpack and a long duffel bag.

They pulled up to the radio station, where a group of about twenty

to thirty of Viliena's supporters were waiting.      Viliena reached

into the backpack and pulled out guns, which he passed out to the

crowd.   He pulled out a shotgun from the long duffel bag and gave

it to Villeme Duclona.     Other members of the mob were armed with

machetes, ice picks, and clubs.     Viliena himself had a gun.   After

Viliena handed out the weapons, Duclona shot the shotgun in the

air and the crowd headed towards the radio station.     Viliena told

them to "attack" the station and led the way.

          Ysemé was at the radio station with Martyr's family, and

he ran to hide in the back of the house.    Viliena and his mob broke

down the front door.    From where he was hiding, Ysemé heard Viliena

discover Martyr and accuse him of hiding to report on Viliena

destroying the radio station.      Ysemé heard Martyr screaming that

Viliena was beating him and saying, "you busted my head with your


                                 - 9 -
gun."    Ysemé testified that over a minute elapsed while Viliena

was beating Martyr.

            Viliena then discovered Ysemé hiding in the back of the

house.   Viliena grabbed Ysemé by the collar and started beating

him too, hitting him all over his face and body.               Viliena also

accused Ysemé of hiding in order to be able to report who destroyed

the radio station.        Viliena threatened to put a noose around

Ysemé's neck and hang him in the public plaza.              Ysemé felt like

"all of [his] bones were cracking" from the pain of Viliena's

blows.

            Meanwhile,     Villeme        Duclona    and   Viliena's      other

supporters were vandalizing and removing the radio equipment from

the station.    Viliena dragged Ysemé onto the porch and ordered an

associate to restrain Ysemé until they could hang him.             When the

associate momentarily let go of Ysemé in order to pillage more

radio equipment,       Ysemé ran.        He heard Viliena say, "Villeme

[Duclona], shoot him.           Shoot Juders [Ysemé]."      Duclona obeyed.

Shotgun pellets sprayed the side of Ysemé's body, hitting his eye,

head, arm, and stomach.

            Viliena also told Duclona to shoot Martyr.          When Duclona

hesitated, Viliena insisted.           Duclona then shot Martyr in the leg.

Martyr was in "excruciating pain" and thought he was dying.

            Ysemé and Martyr both survived but suffered permanent

injuries.      Ysemé     lost    one    eye.    He   was   hospitalized    for


                                       - 10 -
twenty-three days and underwent many surgeries, but the doctors

were not able to remove all of the shotgun pellets from his face

and body.    He testified that he still feels pain "like [his] skin

is tearing apart" from the pellets that remain in his body and

that he has "a continuing excruciating headache, nonstop."       He

left Les Irois in 2017 out of fear that Viliena might kill him and

has lived in hiding, separated from his wife and family, ever

since.

            Martyr's leg was amputated, and he spent four months in

the hospital.    He was unable to continue working as a farmer or to

provide for his family.   He felt that he was living "as an animal,"

not "with the dignity of a human being."    Martyr died suddenly in

2017, two days after this lawsuit was filed.2

                C. Viliena's Move to the United States

            Viliena obtained lawful permanent resident status in the

United States in July 2008.        He moved to the United States

permanently in 2009, although he continued to travel to and from

Haiti periodically.     At the time of trial, he lived in Malden,

Massachusetts, and worked as a truck driver.




     2 Ysemé testified that Martyr felt well at the beginning of
the day but, over the course of a few hours, began to sweat
profusely and was unable to speak or talk. He died in the ambulance
on the way to a larger hospital.


                                - 11 -
                      II. Procedural History

          The plaintiffs       initially   sought relief    through both

criminal and civil proceedings in local Haitian courts.               The

parties have different accounts as to what happened in the criminal

proceedings, but they agree that Viliena was never convicted.

Similarly, the parties agree that the plaintiffs never received

civil damages but disagree on the reasons.        The plaintiffs state

that they were awarded monetary damages in civil lawsuits in Haiti

but never recovered any part of the awards.         Viliena says that

those claims were dismissed.

          In 2017, Boniface, Martyr, and Ysemé filed this lawsuit

in the U.S. District Court for the District of Massachusetts,

seeking damages for acts allegedly committed by Viliena in Haiti

between 2007 and 2010.3    The plaintiffs brought claims under the

TVPA, which are the claims at the heart of this appeal; under the

Alien Tort Statute ("ATS"), 

; and for arson under

Haitian law.4    Specifically, the plaintiffs alleged that the

extrajudicial   killing   of    Eclesiaste   Boniface,     the   attempted

extrajudicial killings of Martyr and Ysemé, and the torture of

Martyr and Ysemé violated the TVPA.


     3 After Martyr's death, his son, Nissandère Martyr, was
substituted as a plaintiff.
     4 The arson claim proceeded to trial and the jury found Viliena

not liable. We do not discuss any of the evidence related to the
arson claim because it is not relevant to the issues on appeal.


                                  - 12 -
                          A. Pretrial Motions

          Given the extensive procedural history, we will only

highlight the aspects that are relevant to the resolution of this

appeal, providing more detail as needed in later sections.

          First, in response to Viliena's motion, the district

court dismissed the plaintiffs' ATS claim.            The district court

agreed with Viliena that under Kiobel v. Royal Dutch Petroleum

Company, 

 (2013), the complaint failed to allege with

sufficient particularity that the claims touched and concerned the

territory of the United States.            The district court therefore

determined that the ATS did not provide a cause of action for

plaintiffs' claims.      But the district court rejected Viliena's

argument that Kiobel also required dismissal of the plaintiffs'

TVPA claims.       The district court reasoned that Kiobel did not

concern the TVPA and that 

 (the federal question

jurisdiction       statute)     separately     provided      subject-matter

jurisdiction for the TVPA claims.

          Second, Viliena filed a motion for reconsideration of

the district court's determination that it had subject-matter

jurisdiction over the TVPA claims.           He reiterated his argument

that the claims did not "touch and concern" the United States,

using   Kiobel's    language,    but   added   that   "the    exercise   of

jurisdiction over domestic crimes within another country between

persons who are not United States citizens falls outside the limits


                                  - 13 -
of the authority vested in Congress by the Constitution" and was

potentially         "an    unconstitutional         exercise        of    legislative

authority."          But   the    district      court    affirmed        that   it    had

subject-matter jurisdiction over the TVPA claims, writing that it

"underst[ood] Viliena's argument . . . to be another attempt at

arguing for an extension of Kiobel's holding to the TVPA, which

the [c]ourt ha[d] already rejected."

                                        B. Trial

              At trial, the plaintiffs presented evidence supporting

the three TVPA claims: the extrajudicial killing of Eclesiaste

Boniface,     the    attempted        extrajudicial     killings     of    Martyr     and

Ysemé, and the torture of Martyr and Ysemé.

              In    addition     to    the    allegations     above,      which      were

recounted through eyewitness testimony, the plaintiffs presented

expert testimony from Robert Maguire, an academic with expertise

on political violence in Haiti.                    Maguire testified about the

conditions of political violence in Haiti and, in particular,

community-based armed groups, describing these as groups that work

in "a symbiotic relationship with a" politician and which "function

above   the    arm    of   the   law."        In   addition    to    giving     general

information about such organizations, he opined that KOREGA is a

community-based armed group that aligns itself with political

groups and provides political leaders with "muscle" to help them

get elected and stay in power.               Maguire also testified that KOREGA


                                         - 14 -
was aligned with the MODEREH party in the late 2000s and that the

Struggling People's Party was MODEREH's main opposition.

           After the plaintiffs' case, Viliena moved for judgment

as a matter of law under Federal Rule of Civil Procedure 50(a).

The district court took the motion under advisement, opting not to

decide it until the jury had returned a verdict.

           The defense's case consisted of Viliena's testimony, in

which Viliena offered a different account of the events.5

                          C. Jury Verdict

           The jury found Viliena liable to the plaintiffs on each

of the three TVPA claims, entering responses to claim-specific

questions in a verdict form.    The jury awarded actual damages of

$1.75 million to Boniface for the extrajudicial killing of his

brother.   The jury found Viliena liable for both the attempted

extrajudicial killing and the torture of Martyr.      For these two

separate liability findings, the jury gave a single damages award

of $1.25 million to Martyr's son, Nissandère Martyr.        The jury

also found Viliena liable for both the attempted extrajudicial

killing and the torture of Ysemé.       The jury awarded Ysemé $1.5

million.   The jury also awarded $11 million in punitive damages.




     5 Due to Viliena's challenge to the sufficiency of the
evidence, which requires us to view the facts in the light most
favorable to the verdict, we do not detail Viliena's testimony
that contradicted the plaintiffs' evidence.


                               - 15 -
                          D. Post-Trial Motions

          Following the jury verdict, Viliena renewed his motion

for judgment as a matter of law under Federal Rule of Civil

Procedure 50(b) and also moved for a new trial and remittitur under

Federal Rule of Civil Procedure 59(a).       The district court denied

the motions.

          Viliena timely appealed.

                            III. Discussion

          We      first     address     Viliena's    arguments      about

subject-matter jurisdiction and legislative jurisdiction.        We then

discuss the availability of a cause of action for attempted

extrajudicial killing under the TVPA.            We end by addressing

Viliena's remaining challenges to the liability findings and the

damages awards.

                A. Threshold Constitutional Questions

          We begin, as we must, with Viliena's arguments that

neither we nor the district court have the power to hear this case.

Viliena   has     repeatedly   argued     that   federal   courts   lack

subject-matter jurisdiction over this case because "Congress [may

not] make laws providing for the adjudication of foreign disputes

between foreign citizens."       Before going into the specifics of

this case, we pause to clarify the questions that this argument

presents, which have been the source of some confusion.




                                 - 16 -
            "Subject-matter jurisdiction" refers to a court's power

to   hear   the    case   before   it.    Federal    courts   have   limited

subject-matter jurisdiction, meaning that they possess "only that

power authorized by Constitution and statute."            Gunn v. Minton,

 (2013) (quoting Kokkonen v. Guardian Life Ins.

Co. of Am., 

 (1994)).              Because subject-matter

jurisdiction "involves a court's power to hear a case, [it] can

never be forfeited or waived."           Arbaugh v. Y&H Corp., 

 (2006) (quoting United States v. Cotton, 

 (2002)).      Courts "have an independent obligation to determine

whether subject-matter jurisdiction exists, even in the absence of

a challenge from any party."         

 (citing Ruhrgas AG v. Marathon

Oil Co., 

 (1999)).          To make this determination,

we look to the Constitution and to a statute that authorizes the

federal courts to exercise jurisdiction.            See Gunn, 

.      And,    if a federal court concludes that subject-matter

jurisdiction is lacking, it must dismiss the complaint, no matter

what stage of the proceeding the case is in.          Arbaugh, 

.

            "Legislative jurisdiction" refers to a legislature's

power to pass a statute.           Torres v. Lynch, 

(2016).     In other words, it deals with "the authority of a state

to make its law applicable to persons or activities."                Hartford

Fire Ins. Co. v. California, 

 (1993) (quoting 1


                                    - 17 -
Restatement (Third) of Foreign Relations Law of the United States

231    (1987))     (Scalia,   J.,   dissenting).         To   determine    whether

Congress has exceeded its powers, we look to the Constitution and

the powers that it grants to Congress.             See 

       However, even if

Congress lacked constitutional power to pass a statute or provide

a particular cause of action, the court would nonetheless have the

power to decide whether Congress possessed that power.                     See 

(legislative       jurisdiction     "is    quite   a   separate     matter    from

'jurisdiction to adjudicate'" (citation omitted)).

             As we will explain below, Viliena's arguments, which he

has framed as challenging "subject-matter jurisdiction," actually

contain two separate arguments: one challenging subject-matter

jurisdiction (meaning federal courts' power to hear this case) and

one challenging legislative jurisdiction (meaning Congress's power

to authorize the TVPA to apply where the conduct occurred outside

the United States and between foreign citizens). We will therefore

address each argument separately.

                       1. Subject-Matter Jurisdiction

             Viliena first argues under Kiobel that federal courts do

not have subject-matter jurisdiction over these TVPA claims, which

concern alleged torts committed outside of the United States by

and against non-U.S. citizens.            The district court's determination

that    it   had    subject-matter        jurisdiction    over    the   complaint

presents a legal question that we review de novo.                         Bower v.


                                     - 18 -
Egyptair Airlines Co., 

 (1st Cir. 2013) (citing

Fernández-Vargas v. Pfizer, 

 (1st Cir. 2008)).             For

the reasons that follow, we affirm the district court's conclusion

that there is federal question jurisdiction over these TVPA claims.

           We look to the Constitution and an authorizing statute.

See Gunn, 

.      The Constitution states, in relevant

part, that "[t]he judicial Power shall extend to all Cases, in Law

and Equity, arising under . . . the Laws of the United States."

U.S.   Const.    art. III,   § 2,    cl. 1.     Congress,   in    turn,   has

authorized      federal   district     courts    to    exercise    original

jurisdiction in "all civil actions arising under the Constitution,

laws, or treaties of the United States."          

.       The

Supreme Court has counseled that "a case arises under federal law

when federal law creates the cause of action asserted."           Gunn, 

.     Here, the TVPA provides an express federal cause of

action, 

 note § 2(a), so TVPA claims "arise[]

under" federal law, § 1331.     Federal courts therefore have federal

question subject-matter jurisdiction over TVPA claims.

                      2. Legislative Jurisdiction

           We now turn to Viliena's argument that Congress lacked

the power to authorize civil liability under the TVPA for alleged

acts of torture and extrajudicial killing occurring outside of the

United States and between foreign citizens.           We first explain his

argument on appeal before turning to the procedural history in


                                    - 19 -
detail to explain why this argument was sufficiently presented to

the district court.    We then explain the standard of review and

conclude that we must remand for the district court to decide this

issue in the first instance.

          On appeal, Viliena argues that the TVPA does not fall

within the constitutional grant of the Offenses Clause, which

authorizes Congress to "define and punish . . . Offenses against

the Law of Nations."    U.S. Const. art. I, § 8, cl. 10.    Viliena

resists the idea that the Offenses Clause gives Congress the power

to grant federal courts civil jurisdiction over actions occurring

outside of the United States for conduct that does not touch or

concern the United States.     He also notes that, even if the TVPA

can overcome the presumption against extraterritorial application,

statutes should be construed to avoid violating the law of nations

if possible.   (Quoting Hartford Fire Ins. Co., 

(Scalia, J., dissenting)).     He goes so far as to argue that our

exercise of extraterritorial jurisdiction would in fact violate

"the law of nations" (i.e., customary international law) and

"traditional notions of comity" that prevent one country from

"sit[ting] in judgment on the acts of the government of another,

done within its own territory."    (Quoting Underhill v. Hernandez,

 (1897)).     Therefore, Viliena concludes, even if

Congress intended the TVPA to apply extraterritorially, Congress




                                - 20 -
did not actually have the power to infringe on other countries'

jurisdiction.

            Viliena's briefing is admittedly muddy on this point.

Even now, it is not clear that he understands his argument about

legislative       jurisdiction   to    be   distinct   from   the   issue   of

subject-matter jurisdiction.           Indeed, all of the arguments just

laid out are presented as part of his challenge to subject-matter

jurisdiction.       Viliena's briefing before the district court was

similarly unclear, although, for the reasons that follow, we are

persuaded that he raised this argument sufficiently so as to be

preserved.       To explain why, we walk through the procedural history

in some detail.

            First, in addressing subject-matter jurisdiction in his

motion     to    dismiss,   Viliena     cited   legislative   history   that

identified the Offenses Clause as a source of Congressional power

to pass the TVPA and argued that the law of nations did not allow

for one sovereign to exercise jurisdiction over the affairs of

another.        (Citing S. Rep. 102-249, at 5 (1991)).         He contended

that Congress may not "make laws providing for the adjudication of

foreign disputes between foreign citizens."            The plaintiffs argued

in response, in part, that the Offenses Clause provided Congress's

constitutional power to apply the TVPA extraterritorially.                  In

denying this part of the motion to dismiss, the district court

held that 

 granted jurisdiction over the TVPA


                                      - 21 -
claims     and     rejected        Viliena's       arguments      based     on

extraterritoriality, noting that Kiobel did not concern the TVPA.

Boniface v. Viliena, 

 (D. Mass. 2018).

However, it did not address Viliena's argument that Congress itself

did not have power to pass the TVPA; indeed, it is not clear that

the district court discerned that this was a separate argument

that had to be addressed.        See 

           Next, in his motion for reconsideration, Viliena made

the argument more clearly, explaining that his challenge to the

district court's exercise of § 1331 jurisdiction could be "framed

either as a question as to the constitutional bounds of the TVPA

or the substantive meaning and interpretation of the statute

itself";   in    other    words,       the   exercise   of   extraterritorial

jurisdiction here "falls outside the limits of the authority vested

in Congress by the Constitution and is either not encompassed by

the   statute    itself    or   [is]    an   unconstitutional    exercise   of

legislative authority."6 (Emphases added). Viliena then developed

his arguments related to the Offenses Clause, the law of nations,

and the notion of comity, making the precise arguments that he now

renews on appeal.        In opposition, the plaintiffs argued that the

Offenses Clause provided Congress with "the constitutional power



      6Viliena separately filed a motion for certification of an
interlocutory   appeal,  in   which  he   largely  repeated  the
Kiobel-based arguments from his motion to dismiss.


                                       - 22 -
to   give    the    TVPA      extraterritorial       reach";     in    addition,       the

plaintiffs contended that the TVPA was enacted to implement the

United      States's    international           treaty    obligations         under    the

Convention Against Torture.

             The       district         court     denied        the      motion        for

reconsideration.         Boniface v. Viliena, 

, 118

(D. Mass. 2019).           The district court described the motion as

raising     two     issues:     "first,     whether       a    court    may     exercise

subject[-]matter jurisdiction over TVPA claims based on 

, and second, whether the exercise of jurisdiction over TVPA

claims      pursuant       to    § 1331     is      unconstitutional           in     some

circumstances."         Id.     The district court reiterated that it had

§ 1331 jurisdiction over the TVPA claims.                      Id. at 118-19.           To

answer whether the exercise of extraterritorial jurisdiction here

was "unconstitutional as violative of the law of nations," the

district court compared the parties' competing arguments about the

Offenses     Clause     before     concluding:       "The      [c]ourt    understands

[Viliena]'s argument on this point to be another attempt at arguing

for an extension of Kiobel's holding to the TVPA, which the [c]ourt

has already rejected."             Id. at 120.           The district court also

rejected Viliena's arguments grounded in international comity,

noting       that      Congress's        statutes        may     permissibly          have

extraterritorial        reach     and    rejecting       the   idea    that    the    TVPA

violated the law of nations.                Id. at 120-22.            Because Viliena


                                         - 23 -
provided no case law to support his position, the district court

was   not   persuaded     that    its     exercise       of    jurisdiction       was

unconstitutional.       Id. at 122.       But the district court granted

Viliena's motion for certification of an interlocutory appeal on

the scope of jurisdiction under the TVPA.                Id. at 124.       The First

Circuit, however, denied Viliena's petition.                  Viliena's arguments

about legislative jurisdiction therefore remained unanswered as

the case proceeded to trial.

            We   review   the    district      court's    denial      of   Viliena's

motion for reconsideration for abuse of discretion.                   United States

v. Allen, 

 (1st Cir. 2009) (citing United States v.

Fanfan, 

 (1st Cir. 2009)).               "Reconsideration may

be proper . . . where the district court has misunderstood a party

or made an error of apprehension."             Villanueva v. United States,

 (1st Cir. 2011).

            Because   Viliena     did    not    clearly       delineate     the   two

arguments    about    subject-matter        jurisdiction        and    legislative

jurisdiction, we understand the district court's misapprehension

of the issues.     But this continued misapprehension constituted an

abuse of discretion.      See 

       Viliena's arguments, especially as

presented in his motion for reconsideration, were not merely

"another attempt at arguing for an extension of Kiobel's holding

to the TVPA."    Whether Congress had the power to apply the TVPA to

conduct occurring abroad between foreign citizens is a critical


                                    - 24 -
question, separate from subject-matter jurisdiction, that Viliena

raised before the district court and that the district court has

not yet decided.   We therefore reverse the denial of the motion

for reconsideration and remand.

          We note that there are two distinct questions that the

district court may have to consider 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?    While we are not aware of other

courts that have grappled with these precise questions, we are

confident that the district court can do so, aided by clearer

briefing from the parties that squarely addresses this issue.7


     7  We note that the district court held, in dismissing
plaintiffs' ATS claim, that the alleged facts did not "sufficiently
'touch and concern' the United States" and lacked "a sufficient
connection to the United States."     Boniface v. Viliena, 

 (D. Mass. 2018) (quoting Kiobel v. Royal Dutch
Petroleum Co., 

 (2013)). Plaintiffs did not
appeal this holding or the dismissal of the ATS claim.         As a
result, it is the law of the case that the facts pled did not
"sufficiently 'touch and concern' the United States" and lacked "a
sufficient connection to the United States" for the purposes of
the ATS. See AngioDynamics, Inc. v. Biolitec AG, 

 (1st Cir. 2018) ("[U]nless corrected by an appellate tribunal,
a legal decision made at one stage of a civil or criminal case
constitutes the law of the case throughout the pendency of the
litigation." (alteration in original) (quoting Ellis v. United
States, 

 (1st Cir. 2002))).


                              - 25 -
       B. Attempted Extrajudicial Killing Cause of Action

           We turn to an additional issue that was thoroughly

briefed and litigated before the district court: whether the TVPA

provides a cause of action for attempted extrajudicial killing.

We agree with Viliena that the TVPA provides no such cause of

action; the parties' arguments and the district court's decision

on legislative jurisdiction should accordingly be narrowed to

consider only the TVPA's extrajudicial killing and torture causes

of action.

           The   jury   found   Viliena    liable   for   the   attempted

extrajudicial killings of Martyr and Ysemé during the radio station

attack where Martyr and Ysemé were beaten and shot but not killed.

Before the district court, Viliena moved to dismiss this claim,

arguing that the plain language of the TVPA did not allow for an

"attempted" extrajudicial killing.        The district court disagreed

because Viliena had offered no case law in support.

           On appeal, Viliena argues that the TVPA, by its terms,

does not provide a cause of action for attempted extrajudicial

killing.   (Citing Appel v. Hayut, No. 20 Civ. 6265, 

(S.D.N.Y. June 30, 2021)). Therefore, Viliena argues, the district

court erred in allowing these claims to proceed to trial.

           Whether the TVPA provides a cause of action for attempted

extrajudicial killing is an issue of statutory interpretation that

we review de novo.      See Bos. & Me. Corp. v. Mass. Bay Transp.


                                 - 26 -
Auth., 

 (1st Cir. 2009).    We look first to the plain

text of the statute, Penobscot Nation v. Frey, 

, 490

(1st Cir. 2021) (en banc), "determin[ing] whether the language at

issue has a plain and unambiguous meaning with regard to the

particular dispute in the case," 

 (quoting Barnhart v. Sigmon

Coal Co., 

 (2002)).   "When the text is unambiguous

and the statutory scheme is coherent and consistent, we do not

look to legislative history or Congressional intent."     

 at 491

(citing Carcieri v. Salazar, 

 (2009)).

          In its section on liability, the TVPA provides:

          An individual who, under actual or apparent
          authority, or color of law, of any foreign
          nation—
               (1) subjects an individual to torture
          shall, in a civil action, be liable for
          damages to that individual; or
               (2) subjects     an     individual    to
          extrajudicial killing shall, in a civil
          action, be liable for damages to the
          individual's legal representative, or to any
          person who may be a claimant in an action for
          wrongful death.

 note § 2(a).    The TVPA defines "extrajudicial

killing" as "a deliberated killing not authorized by a [lawful

court order]."   Id. § 1350 note § 3(a).

          Because the statute itself does not mention a cause of

action for attempts, we examine the word "killing" to see if it

might encompass an attempted killing. For the reasons that follow,




                              - 27 -
we are persuaded that it does not: "killing" necessarily means

that a death resulted.

               We begin by turning to the dictionary, as dictionaries

may    help    us     to     determine      the    ordinary       meaning    of   the   word

"killing."          See Penobscot Nation, 3 F.4th at 491.                    "Killing" is

"[t]he       act    of     causing   the    end     of    an    animate    thing's   life."

Killing, Black's Law Dictionary (12th ed. 2024).                          Merriam-Webster

confirms this ordinary meaning, defining "killing" to include "the

act     of     one        that    kills,"       Killing,        Merriam-Webster      Online

Dictionary,               https://www.merriam-webster.com/dictionary/killing

[https://perma.cc/435U-YJKT] (last visited June 23, 2025), and

defining "kill" as "to deprive of life" or "cause the death of,"

Kill,    Merriam-Webster             Online       Dictionary,      https://www.merriam-

webster.com/dictionary/kills                  [https://perma.cc/ECT7-86MJ]              (last

visited June 23, 2025).               These definitions make clear that death

is a necessary result of a killing.

               This plain meaning is confirmed by the statutory scheme,

which provides damages in the case of an extrajudicial killing to

"the individual's legal representative, or to any person who may

be a claimant in an action for wrongful death."                           

note § 2(a)(2).             This stands in stark contrast to the cause of

action for torture, which provides damages to "that individual

[who was tortured]."              Id. § 1350 note § 2(a)(1).              Therefore, if we

read    the        TVPA    to    provide    a     cause    of    action     for   attempted


                                            - 28 -
extrajudicial killing, the statute would appear to only allow the

survivor's legal representative to recover damages -- not the

actual survivor of the attempted extrajudicial killing.        The

oddness of this alternative interpretation confirms that the TVPA

contemplates a cause of action only for completed, not attempted,

extrajudicial killings.

          Finally, we note that we are not alone in determining

that the TVPA does not provide a cause of action for attempted

extrajudicial killings.   See Borochov v. Islamic Republic of Iran,

 (D.C. Cir. 2024) ("The [TVPA] does not allow

any tort claim for injuries arising from an attempted killing.");

see also Appel, 

, at *9-10 (noting the court's

doubts that a "plain reading" of the TVPA provided a cause of

action for attempted extrajudicial killing, although it ultimately

did not need to decide the issue); Mamani v. Sánchez Bustamante,

 (11th Cir. 2020) (stating, in discussing

whether a killing was sufficiently "deliberate," that the TVPA

"requires, at a minimum, that there be a considered, purposeful

act that takes another's life").

          The plaintiffs do not base their argument for attempt

liability on the statutory text itself.   Instead, they urge us to

look past the plain text of the statute, arguing that Congress

based the TVPA's definitions on various international law sources

that allow for attempt liability.   In the face of such clear and


                              - 29 -
unambiguous statutory language, we are not persuaded to look beyond

the bounds of the TVPA itself.8

          Because the statutory language demonstrates that the

TVPA does not provide a cause of action for attempted extrajudicial

killing, the parties and the district court should focus on the

TVPA's extrajudicial killing and torture causes of action in

addressing the issue of legislative jurisdiction.

                                  ***

          Viliena has raised a host of additional challenges to

the trial proceedings and the damages awards.     We address these

questions in the event that they remain pertinent following remand.

See Sellers v. Mineta, 

 (8th Cir. 2004)

(addressing issues that may arise again on remand); Fed. Sav. &

Loan Ins. Corp. v. Tex. Real Est. Couns., Inc., 

,


     8 In this case, the district court allowed the claims for
attempted extrajudicial killing to proceed, pointing to other
decisions that had done the same. Boniface, 

-68 (citing Doe v. Constant, 

 (2d Cir.
2009); Warfaa v. Ali, 

 (E.D. Va. 2014),
aff'd, 

 (4th Cir. 2016); and Yousuf v. Samantar, No.
1:04-cv-1360, 

, at *16 (E.D. Va. Aug. 28, 2012)).
But those decisions give no indication that any party challenged
the availability of attempt liability under the TVPA; without any
discussion of whether the TVPA provides a cause of action for
attempted extrajudicial killing, we do not find those cases
persuasive. See Doe, 

 (affirming a finding of
liability for attempted extrajudicial killing without analyzing
whether the TVPA provides for attempt liability); Warfaa, 

 (same, in allowing attempted extrajudicial killing
claim to proceed); and Yousuf, 

, at *16 (same, in
entering judgment for attempted extrajudicial killing claim). We
therefore reject plaintiffs' argument based on the same cases.


                              - 30 -
268-70 (5th Cir. 1992) (addressing damages arguments in event that

judgment is reinstated on remand); see also Sec. & Exch. Comm'n v.

Commonwealth Equity Servs., LLC, 

 (1st Cir. 2025)

(same).      Our discussions will necessarily be limited by the

district    court's    decision   regarding   legislative      jurisdiction.

Should the district court decide that the TVPA does not provide

civil liability for acts committed by one foreign national upon

another foreign national in a foreign country, then all of these

issues would become moot because the causes of action would be

dismissed.       If the district court determines that Congress had no

such power, the plaintiffs would then be able to file a notice of

appeal regarding the issue of legislative jurisdiction and the

resulting    dismissal.      Should   the   district   court    decide   that

Congress had the constitutional power to provide these causes of

action, then the findings of liability would be affirmed for the

reasons that follow, although Viliena would himself be able to

appeal the district court's decision on remand.         See United States

v. Richardson, 

 (6th Cir. 1991) (addressing issue

so that, if trial court sustains conviction, an additional appeal

need not be taken).       He would also be entitled to a new trial on

damages, as we explain below.

                           C. Evidentiary Issues

            Viliena challenges the remaining two TVPA claims as

resting     on    insufficient    evidence.     When    considering      this


                                   - 31 -
sufficiency challenge, we must view the evidence "in the light

most favorable to the verdict and may reverse only if no reasonable

person could have reached the conclusion arrived at by the jury."

Alvarado-Santos, 

 (citing Valentín-Almeyda v. Mun.

of Aguadilla, 

 (1st Cir. 2006)).                We address

Viliena's arguments in turn.9

                 1. Acting Under Color of Foreign Law

           Viliena argues that there was insufficient evidence to

meet one of the required elements for TVPA claims: that he be

acting under color of foreign law.

           The   TVPA    requires    that   the      defendant     be    "[a]n

individual . . . [acting] under actual or apparent authority, or

color of law, of any foreign nation."             

 note

§ 2(a).   "To determine whether a defendant acted under color of

foreign   law,   we   look   to   'principles   of    agency     law    and   to



     9 Viliena makes an additional evidentiary argument that the
district court abused its discretion in allowing expert Robert
Maguire's testimony on political violence in Haiti. Three days
before trial began, Viliena objected to Maguire's proposed
testimony. The district court denied the motion from the bench as
untimely as well as denying it on the merits, finding that the
expert report met the requisite standard under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 

 (1993). On appeal, Viliena
addressed only the merits of the decision and waited until his
reply brief to refer to the issue of timeliness. But "[i]t is not
enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel's work." United States v.
Zannino, 

 (1st Cir. 1990).      Because Viliena has
waived any argument on the determinative issue of timeliness, we
affirm the district court's denial.


                                  - 32 -
jurisprudence under 

.'"     Chowdhury v. Worldtel

Bangl. Holding, Ltd., 

 (2d Cir. 2014) (quoting Kadic

v. Karadzic, 

 (2d Cir. 1995)); see also H.R. Rep.

No. 102-367, at 5 (1991), as reprinted in 1992 U.S.C.C.A.N. 84, 87

(directing courts to "look to" § 1983 jurisprudence in construing

"color of law" in the TVPA).

          Under § 1983, "[t]he traditional definition of acting

under color of state law requires that the defendant . . . have

exercised power 'possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the authority of state

law.'"   West v. Atkins, 

 (1988) (quoting United

States v. Classic, 

 (1941)).   "[F]or purposes of

the TVPA, an individual acts under color of law . . . when he acts

together with state officials or with significant state aid.'"

Chowdhury, 

 (omission in original) (quoting

Khulumani v. Barclay Nat'l Bank Ltd., 

 (2d Cir.

2007) (per curiam)).

          We turn now to the trial evidence.       Viliena does not

meaningfully contend with the specific evidence at trial. Instead,

he argues that there was "no evidence" that Viliena's actions

resulted from an exercise of state power or that Viliena was a

state actor with respect to the alleged conduct.

          On the contrary, there was sufficient evidence for the

jury to determine that Viliena acted under color of foreign law in


                               - 33 -
both attacks.   First, the day that Viliena killed Eclesiaste

Boniface started with a sanitation dispute to which Viliena was

summoned in his official role as mayor.      Viliena arrested the

resident -- using his authority as mayor -- and brought her to a

judge's house to resolve the dispute.       At the judge's house,

Viliena and his Director of City Hall, Hautefort Bajon, became

angry with Boniface due to Boniface's role as a human rights

advocate in the dispute.     Viliena threatened Boniface and later

fulfilled this threat by bringing an armed mob (including Bajon)

to Boniface's home.       Viliena himself shot Eclesiaste because

Boniface was not there.    When Boniface brought Eclesiaste's body

to Viliena at City Hall the next day, Viliena called the police

and ordered everyone to leave.

          Viewing the facts in the light most favorable to the

plaintiffs, as we must, there was sufficient evidence for a jury

to find, by a preponderance of the evidence, that Viliena was

acting under color of foreign law in the killing of Eclesiaste

Boniface. See Alvarado-Santos, 

. Viliena's actions

in arresting a resident and ordering the police to leave City Hall

were possible only because of his power as mayor.    See West, 

 ("the deprivation must be caused by the exercise of

some right or privilege created by the State . . . or by a person

for whom the State is responsible" (omission in original) (quoting

Lugar v. Edmondson Oil Co., 

 (1982))).        His


                               - 34 -
dispute with Boniface grew out of the threat that Boniface, as a

human rights advocate, posed to him as mayor in the sanitation

dispute.     Viliena escalated this conflict by returning later,

accompanied   by   Bajon -- one   of   his   officials -- and   shooting

Eclesiaste.   See Chowdhury, 

.      A reasonable juror

could have agreed with the plaintiffs' theory that Viliena abused

his power as mayor, resulting in Eclesiaste's death.

           Second, there was also sufficient evidence for the jury

to determine that Viliena acted under color of foreign law during

the April 8, 2008 radio station attack.          From the evidence, a

reasonable juror could have found that Viliena opposed the radio

station because it was critical of him as mayor and because it was

founded by an elected official from an opposing political party.

After the civil protection agency -- which reported to him as the

mayor -- refused his request to take over the radio station,

Viliena led a mob of people to vandalize and steal the radio

equipment.    This crowd included Villeme Duclona and other KOREGA

supporters.    Viliena passed out guns to his supporters and told

them to "attack."    Viliena himself beat up both Ysemé and Martyr

when he found each of them hiding, because he thought they would

report who had destroyed the radio station.

           Again viewing the evidence in the light most favorable

to the jury verdict, there was sufficient evidence for the jury to

agree with the plaintiffs that Viliena had perceived the radio


                                  - 35 -
station as a threat to his mayoral power and that Viliena had

abused his power in leading his political supporters to attack the

radio station.

                         2. Secondary Liability

           Viliena also argues that the TVPA does not provide for

secondary liability and that the district court therefore erred in

instructing the jury that they could hold Viliena responsible for

the acts of others, under several specific theories of secondary

liability:   directing    or    ordering;   solicitation;    aiding   and

abetting; or conspiracy.       Viliena further argues that, even if the

TVPA does allow for secondary liability, there was insufficient

evidence to permit the jury to find that Viliena was secondarily

liable.   Viliena seems to focus this argument on the radio station

attack and to contest the idea that Viliena could be held liable

for Duclona's actions in shooting Martyr and Ysemé.         Since we have

already determined that the judgments for attempted extrajudicial

killing cannot stand, however, we need address this argument only

with regards to the torture claims.10       We will begin by addressing



     10It is not clear whether Viliena's arguments about secondary
liability extend to Eclesiaste Boniface's murder. But we need not
consider whether such an argument would be waived for lack of
development because there was sufficient evidence of direct
liability: one witness testified that Viliena himself shot
Eclesiaste. Viliena points to another witness's testimony that
Viliena told Bajon to shoot Eclesiaste, but a reasonable jury could
have credited the first witness's testimony. See Alvarado-Santos,

.


                                  - 36 -
whether secondary liability is available under the TVPA before

turning to the relevant evidence for the torture claims.

           Before doing so, we note that we do not weigh each of

the proposed theories of secondary liability because we conclude

that the TVPA permits aiding and abetting liability and that there

was adequate evidentiary support for this theory.          In cases where

"a single verdict question encompasses multiple theories, one of

which is defective," our "usual" approach is to order a new trial.

Cornwell Ent., Inc. v. Anchin, Block & Anchin, LLP, 

 (1st Cir. 2016) (quoting Gillespie v. Sears, Roebuck & Co., 

 (1st Cir. 2004)).          But "we have generously applied

the harmless error concept to rescue verdicts where we could be

reasonably sure that the jury in fact relied upon a theory with

adequate evidentiary support."            

 (emphasis omitted)

(quoting   Gillespie,   

).   So,   because   there   is

sufficient evidence of aiding and abetting, it is unnecessary for

us to walk through each additional theory to determine if any of

them might be defective.      See 

                 a. Aiding and Abetting Liability

           We first ask whether the TVPA provides for aiding and

abetting liability.     Unlike federal criminal law, where Congress

has provided a general aiding and abetting statute that applies to

all federal criminal offenses, "Congress has not enacted a general

civil aiding and abetting statute."          Cent. Bank of Denv., N.A. v.


                                 - 37 -
First Interstate Bank of Denv., N.A., 

 (1994);

see also 

 (federal criminal aiding and abetting

statute).       Instead,   Congress    "has   taken    a   statute-by-statute

approach to civil aiding and abetting liability."               

     In Central

Bank,   the    Court   looked   to    the   relevant    statutory        text   and

legislative      history   before     determining      that     the    challenged

statutory provision (a securities fraud law) did not provide for

aiding and abetting liability.         

; see also Doe I v.

Cisco Sys., Inc., 

 (9th Cir. 2023) (discussing

Central Bank and determining that the TVPA provides for aiding and

abetting liability).

              We therefore begin with the text of the TVPA.              The TVPA

provides for civil liability against someone who "subjects an

individual to torture."         

 note § 2(a)(1).                 To

"subject" means "[t]o cause to undergo some action, agent, or

operation."     Subject, Black's Law Dictionary (12th ed. 2024); see

also        Subject,       Merriam-Webster            Online          Dictionary,

https://www.merriam-webster.com/dictionary/subject

[https://perma.cc/7FCR-VNEF]          (last   visited         June     23,   2025)

(defining "subject" as "to cause or force to undergo or endure

(something unpleasant, inconvenient, or trying)").                   We agree with

the Ninth Circuit, which has recently considered this question,

that Congress's choice of words is meaningful.             See Cisco Sys., 

. In drafting the TVPA, Congress could have restricted


                                     - 38 -
its terms to direct liability by instead using the term "tortures"

or "inflicts torture."        See 

       Congress's choice to use the

broader phrase -- "subjects . . . to torture" -- "indicates that

the statute contemplates liability for actions that helped bring

about the torture but did not directly inflict it."              

            The    TVPA's   legislative     history     also   confirms   this

reading.    The Senate Report noted:

            The legislation is limited to lawsuits against
            persons who ordered, abetted, or assisted in
            the torture.   It will not permit a lawsuit
            against a former leader of a country merely
            because an isolated act of torture occurred
            somewhere in that country. However, a higher
            official need not have personally performed or
            ordered the abuses in order to be held liable.
            Under international law, responsibility for
            torture, summary execution, or disappearances
            extends beyond the person or persons who
            actually committed those acts -- anyone with
            higher authority who authorized, tolerated or
            knowingly ignored those acts is liable for
            them.

S. Rep. No. 102–249, at 8-9.

            This reading of the statutory text aligns with opinions

of the Supreme Court and other circuits that the TVPA is not

limited to direct liability.         The Supreme Court has noted that

"the TVPA contemplates liability against officers who do not

personally execute the torture or extrajudicial killing."              Mohamad

v. Palestinian Auth., 

 (2012) (citing Chavez v.

Carranza,    

    (6th   Cir.    2009)    (addressing

availability of command responsibility for TVPA claims)) (the


                                   - 39 -
issue of secondary liability under the TVPA was not squarely before

the Court).       The Second, Ninth, and Eleventh Circuits have all

found that the TVPA provides for various forms of secondary

liability.     See Chowdhury, 

 (holding that "agency

theories of liability are available in the context of a TVPA

claim"); Cisco Sys., 

 (holding that "the TVPA

encompasses claims against those who aid and abet torture or

extrajudicial killing"); Doe v. Drummond Co., 

(11th Cir. 2015) (concluding that "secondary or indirect theories

of liability recognized by U.S. law are available for claims

brought under the TVPA" and affirming the jury verdict under aiding

and    abetting    liability);    see   also   Chavez,    

(affirming under command responsibility).

                  b. Whether the Evidence was Sufficient

             Having confirmed that aiding and abetting is available

as a theory of liability under the TVPA, we turn to Viliena's

argument that the evidence was insufficient to find him secondarily

liable for the torture of Martyr and Ysemé.

             Aiding and abetting in tort law generally requires that

"the defendant ha[s] given knowing and substantial assistance to

the primary tortfeasor."         Twitter, Inc. v. Taamneh, 

 (2023).       The plaintiffs also must prove that the underlying

tort   has   occurred.     See    

.   The   district     court's




                                    - 40 -
instructions to the jury tracked this case law.              It told the jury

that the plaintiffs must prove, by a preponderance of the evidence:

          1. That one or more of the alleged wrongful
          acts was committed.
          2. That Defendant Viliena committed or gave
          substantial assistance to the person or
          persons who committed or caused one or more of
          the alleged wrongful acts;
          And 3. That the Defendant Viliena knew that
          his actions would assist in the illegal or
          wrongful activity at the time he provided the
          assistance.

See also Cabello v. Fernández-Larios, 

 (11th

Cir. 2005) (holding that a plaintiff could prove indirect liability

under the TVPA if he demonstrated, by a preponderance of the

evidence, that one of the wrongful acts underlying the claim was

committed and that the defendant had knowingly and substantially

assisted a person who committed the wrongful act).

          Applied     here,   there     was     sufficient   evidence    for   a

reasonable jury to find Viliena liable for the torture of Ysemé

and of Martyr, including that Viliena aided and abetted Duclona in

shooting Ysemé and Martyr.       The jury heard testimony that Viliena

personally   handed    out    guns    to   a    mob   of   twenty   to   thirty

people -- including handing a shotgun to Duclona -- before telling

them to "attack" the radio station.            After breaking into the radio

station, Viliena himself beat and pistol-whipped Martyr, and he

assaulted Ysemé too, to the point that Ysemé felt like his bones

were "cracking."      Viliena dragged Ysemé out onto the porch and



                                     - 41 -
ordered someone to restrain him until they could hang Ysemé in

public; when Ysemé managed to break away, Viliena told Duclona to

shoot Ysemé.     Duclona did so, with the shotgun that Viliena had

given him.    Similarly, Viliena instructed Duclona to shoot Martyr,

insisting when Duclona showed signs of hesitation.              Duclona then

shot Martyr.

             There   was   no   dispute   at   trial   that   the   underlying

wrongful act here -- Duclona shooting Martyr and Ysemé -- actually

happened.      See Taamneh, 

 (aiding and abetting

liability must rest on underlying tort).                The testimony that

Viliena gave Duclona the shotgun and told him to shoot both Martyr

and Ysemé was sufficient for the jury to conclude that Viliena had

given "knowing and substantial assistance" to Duclona.                 

.   In the face of this evidence, Viliena's argument that there

were "no facts" enabling the jury to find him secondarily liable

for torture is unconvincing.         Indeed, the evidence demonstrating

that Viliena aided and abetted Duclona in shooting both victims

supplemented his own direct liability in beating them.                     The

evidence was therefore sufficient to find Viliena liable for the

torture of Martyr and Ysemé.

                                  D. Damages

             Because the attempted extrajudicial killing cause of

action should not have proceeded to trial, we consider whether the




                                    - 42 -
damages awards may need to be recalculated even if the remaining

TVPA causes of action stand.

          1. Damages for Nissandère Martyr and Juders Ysemé

           The jury provided single damages awards to Nissandère

Martyr and Ysemé for the torture and attempted extrajudicial

killing claims ($1.75 million to Nissandère Martyr and $1.25

million to Ysemé).11    Plaintiffs argue that, even if we determine

that the judgments for attempted extrajudicial killing should not

stand -- as we have -- we can affirm the single damages award on

another basis.      Because Viliena does not contest the torture

claims, they argue, the damages award can be affirmed on that basis

alone.    (Citing Molloy v. Blanchard, 

 (1st Cir.

1997) ("The jury provided a single damages award for both claims,

and so long as Plaintiff is found entitled to have prevailed on

either of the two claims, the award stands, with no alteration in

the amount of damages regardless of whether one or both claims are

upheld.")).

           In general, a combined damages award for multiple claims

should be vacated where additional conduct supported a claim that

has been vacated.      See Coastal Fuels of P.R., Inc. v. Caribbean

Petroleum Corp., 

 (1st Cir. 1996) (vacating


     11 Given the format of the jury verdict form, although the
jury reached separate liability findings as to torture and
attempted extrajudicial killing, it awarded a combined damages
calculation for both causes of action.


                                - 43 -
entire    damages        award         "comprising        awards     for     both     price

discrimination and monopolization claims" because "the jury may

well have weighed harms resulting from conduct that was pleaded

with respect to the monopolization offense . . . but would have

been additional to harms resulting from price discrimination, the

claim we uphold"). Conversely, even where a plaintiff is "entitled

to have prevailed on" a single claim, we may affirm a combined

damages award where the same conduct underlies multiple claims and

the    damages    would      be    the    same.         Molloy,    

(affirming       combined         damages     award       based     on     valid      gender

discrimination claim,             without deciding procedural due process

claim, because "[t]he same conduct underlay both" and "the jury's

damages award would be the same under either or both liability

theories").

              In this instance, we think that even if the district

court    allows        the   TVPA      claims      to    proceed    after       addressing

legislative jurisdiction, fairness would require a new damages

award for Ysemé and Nissandère Martyr based on torture alone.                           The

jury    was   instructed          to   determine        compensatory       damages    using

"fairness        and     common          sense,"        considering -- among          other

factors -- the           plaintiff's          "loss        or      injury,"         "shame,

mortification,           humiliation,           indignity[,] . . . mental               and

emotional distress[,] and "any harm to [his] reputation."                             True,

much or all of the same conduct and the same medical expenses


                                           - 44 -
underlay    the    torture    claim     and     the     now-defunct      attempted

extrajudicial killing claim.          But we cannot rule out that a jury

considering       liability     for     both        torture     and      "attempted

extrajudicial     killing"    would     grant       higher    damages    for   these

difficult-to-quantify factors than a jury considering liability

for torture alone.      For example, the jury may well have granted

higher damages for emotional distress to a plaintiff who was the

victim of torture and an attempted extrajudicial killing than a

plaintiff who was tortured.            The implications of an attempted

killing are more extreme, even when compared to the horrors of

torture.    Due to the highly charged nature of an accusation of

"attempted extrajudicial killing," we determine that these damages

awards should be reassessed if the TVPA torture and extrajudicial

killing claims stand following remand.                See Hormel v. Helvering,

 (1941) ("Orderly rules of procedure do not

require    sacrifice   of     the   rules      of    fundamental      justice.").12

However, we again emphasize that whether a new trial on damages is

required    depends    upon     the     resolution       of     the     legislative




     12Viliena argues that the TVPA does not provide for punitive
damages. However, this argument consists of a single sentence and
the case he cites is not on point; this argument is therefore
waived for lack of development.     See Zannino, 

.
Similarly, he argues in two sentences that the punitive damages
award here was "grossly excessive" but does not explain why. This
conclusory statement also constitutes waiver. See 

                                      - 45 -
jurisdiction issue that the district court must address in the

first instance on remand.

                  2. Additional Damages Awards

          The jury awarded compensatory damages to Boniface for

the extrajudicial killing of his brother, Eclesiaste Boniface.

This finding of liability will stand if the district court holds

that there is legislative jurisdiction for this claim.     The jury

also awarded punitive damages.     Given the potential that the

erroneous attempted extrajudicial killing claim may have impacted

the rest of the jury's calculations, we consider whether these

additional damages awards would still stand.

          "An appellate court has broad discretion to remand for

a new trial on all, or only some, of the issues in the case."

Bergus v. Florian, 

, 29 n.12 (1st Cir. 2024) (quoting

Dopp v. HTP Corp., 

 (1st Cir. 1991)).       "A new

trial may not, however, be limited to fewer than all the issues

unless it clearly appears that the issues to be retried are so

distinct and separable from the other issues that a trial of those

issues alone may be had without injustice."   La Plante v. Am. Honda

Motor Co., 

 (1994).

          Should the district court allow the extraterritorial

TVPA claims here to proceed, we think the jury must recalculate

all of the damages awards, not only those to Nissandère Martyr and

Ysemé.   The issue of Boniface's damages is not so distinct from


                              - 46 -
Nissandère Martyr's and Ysemé's damages that a separate retrial

would avoid injustice.       See 

     While Boniface's compensatory

damages award was not "directly undermined" by the error in

allowing the attempted extrajudicial killing claim to proceed to

trial, removing that error may "improve[] the atmosphere for the

defense."    Gillespie, 

.           It is difficult to

determine    how    the   jury's    consideration     of   the   attempted

extrajudicial killing claims may have affected the rest of the

damages calculations.      See Mandel v. Bos. Phoenix, Inc., 

, 211 (1st Cir. 2006) (ordering a full retrial, even though the

error "arguably" did not influence one of the jury's findings,

because the evidence related to that finding "may have affected

other aspects of the trial").          And because a new trial would

already be required for Nissandère Martyr's and Ysemé's damages,

retrying the remainder of the damages awards would require "only

marginally greater resources."         See id.    Therefore, a new trial

for   all   of   the   damages -- including      Boniface's   compensatory

damages and the punitive damages -- would minimize concerns about

judicial waste.13      See Dopp, 

.




      13Because any damages award would have to be retried,
Viliena's argument that the district court abused its discretion
in denying remittitur is moot.


                                   - 47 -
                          IV. Conclusion

         The   district   court's   order   denying   the   motion   for

reconsideration is affirmed in part and vacated in part.             This

case is remanded for proceedings consistent with this opinion.

                  -Concurring Opinion Follows-




                              - 48 -
            LYNCH, Circuit Judge, concurring.               I join the court's

fine opinion, including its remand of the questions of whether the

TVPA creates causes of action for torture and extrajudicial killing

among Haitian nationals, not U.S. citizens, for activities which

took place entirely in Haiti and where, as the district court

correctly      held,    Haitian   national      plaintiffs'      claims    do    not

"sufficiently 'touch and concern' the United States." That holding

is the law of the case.14

            I   write    separately      to    highlight    some   of     the   very

difficult issues to be faced on remand.                    The remanded issues

necessarily first ask whether Congress intended to create such

causes    of    action    under    the    numerous      canons     of     statutory

construction applicable to the issue.              If so, the next question

must be addressed of whether Congress had the power to do so under

the U.S. Constitution.

            The Supreme Court very recently reaffirmed its repeated

warnings that courts must be extremely cautious about construing

federal statutes to allow extraterritorial applications.                   See Fuld

v. Pal. Liberation Org., 

, __, 

(2025)    (stating     that   "hal[ing]       foreign   defendants      into    U.S.



     14   Because plaintiffs fail to appeal the district court's
finding that their claims did not "sufficiently 'touch and concern'
the United States," this is the law of the case, and is pertinent
under Kiobel v. Royal Dutch Petroleum Co., 

(2013).


                                    - 49 -
courts" requires "conduct closely related to the United States"

and   declining         to   "bless     more        attenuated       assertions   of

jurisdiction"); see also Kiobel v. Royal Dutch Petroleum Co., 

 (2013); Sosa v. Alvarez-Machain, 

 (2004).

              A serious question is presented of whether the TVPA uses

the   clear    language      needed    to    rebut    the   presumption     against

extraterritorial application here, in contrast with the clear

language used in other statutes.                 That presumption necessarily

implicates foreign policy consequences, which the Supreme Court

has instructed must be taken into account.                    Congress appears to

have justified the enactment of the TVPA to implement the United

Nations Convention Against Torture (CAT), but it appears the CAT

does not require, and indeed may be in tension with, creation of

the   causes    of   action     here.        Also    raised    are    questions   of

constitutional avoidance and compliance with international law,

given notions of prescriptive comity and the law of nations.

                                            I.

              The        "presumption            against         extraterritorial

application . . . provides that '[w]hen a statute gives no clear

indication of an extraterritorial application, it has none.'"

Kiobel, 

 (alteration in original) (quoting Morrison

v. Nat'l Austl. Bank Ltd., 

 (2010)).                     Indeed, "

[i]t is a 'rare statute that clearly evidences extraterritorial

effect        despite        lacking        an       express      statement       of


                                       - 50 -
extraterritoriality.'"     Abitron Austria GmbH v. Hetronic Int'l,

Inc., 

, 420 (2023) (quoting RJR Nabisco v. European

Cmty., 

, 340 (2016)).

          "[W]eighty concerns underl[ie] the presumption against

extraterritoriality."     Kiobel, 

.    The presumption

"serves to protect against unintended clashes between our laws and

those of other nations which could result in international discord"

and "retaliative action."      

 (first quoting EEOC v.

Arabian Am. Oil Co., 

 (1991); and then quoting

Benz v. Compania Naviera Hidalgo, S.A., 

 (1957)).

It also ensures that "the Judiciary does not erroneously adopt an

interpretation   of     U.S.   law   that   carries   foreign   policy

consequences not clearly intended by the political branches."15

Id. at 116.

          Under Fuld and Kiobel, there is a serious question of

whether the TVPA contains the necessary "clear indication" to

sustain the extraterritorial applications urged by plaintiffs,



     15   Even    "[w]hen    a   statute    provides   for    some
extraterritorial application," the presumption "operates to limit
that provision to its terms." Kiobel, 

-22 (quoting
Morrison, 

); see 

 ("[T]he existence of a cause
of action against [pirates] is [not] a sufficient basis for
concluding that other causes of action under the ATS reach conduct
that does occur within the territory of another sovereign; pirates
may well be a category unto themselves."); see also RJR Nabisco,
579 U.S. at 338 (holding that "the presumption against
extraterritoriality ha[d] been rebutted -- but only with respect
to certain applications of the statute").


                                - 51 -
particularly when compared with the language Congress used in the

U.S. Code provision criminalizing torture and in other statutes.

See Kiobel, 

.      The TVPA, enacted as a note to the

ATS, appears to contain no explicit statement that it applies to

entirely foreign conduct, such as on these facts.       The absence of

such language "strongly suggests that [Congress] meant for [the

TVPA] to work differently."      See Stanley v. City of Sanford, 

, ___, 

, 2064 (2025); see also Medina v.

Planned Parenthood S. Atl., 

, ___, 

 (2025) (clear language in other statutes shows that "Congress

knows how to" use such language).         And even when Congress used

such language in other statutes, it included limitations.16

            In contrast to the text of the TVPA, which is a civil

damages statute, the U.S. criminal code does contain explicit

extraterritorial   application    language   and   subjects   even   that

language to limitations.   See Torture, 18 U.S.C. § 2340A(a), (b)

(criminalizing torture "outside the United States" "irrespective

of the nationality of the victim or alleged offender" with the

limitation that "the alleged offender [be] present in the United

States").    In the civil cause of action to challenge acts of

international terrorism, Congress likewise expressly defined an



     16   See Medina, 

 (construing the statute
at issue differently than another statute because "Congress's work
in the two provisions could not have been more different").


                                 - 52 -
act of international terrorism as one which "occur[s] primarily

outside the territorial jurisdiction of the United States," 

(1), with the limitation that the plaintiff be a

"national of the United States."           See Terrorism, Civil Remedies,

(a).     And in many other contexts, also unlike in

the TVPA, Congress clearly stated its intent to apply statutes

extraterritorially in certain limited circumstances.           See, e.g.,

Genocide, 

 (criminalizing genocide "regardless of

where the offense is committed" if the alleged offender is a U.S.

national, permanent resident, stateless person habitually residing

in the U.S., or is present in the U.S); Peonage, Slavery, and

Trafficking   in    Persons,   Additional      Jurisdiction   in    Certain

Trafficking        Offenses,    

        (creating

"extra-territorial jurisdiction" over certain trafficking offenses

if, inter alia, "an alleged offender is present in the United

States, irrespective of the nationality of the alleged offender").

                                     II.

          The Supreme Court has warned in interpreting statutes

that "providing a private civil remedy for foreign conduct creates

a potential for international friction beyond that presented by

merely applying U.S. substantive law to that foreign conduct."17


     17    The defendant here was recently convicted, in a
different case before a different jury, of visa fraud in violation
of 

(a). Specifically, the jury found defendant
had knowingly and falsely answered "no" in response to a question


                                 - 53 -
RJR Nabisco, 579 U.S. at 346-47; see also Sosa, 

("[C]laim[ing] a limit on the power of foreign governments over

their own citizens, and . . . hold[ing] that a foreign government

or its agent has transgressed those limits" has "adverse foreign

policy consequences.").

          In   construing   statutes,      courts   also    must   take   into

account what Justice Thomas, concurring in Fuld, described as the

risk   that    "countries   may    decide    to     enact    '"retaliatory"

jurisdictional provisions' that 'empower [their] national courts

to exercise jurisdiction over [American citizens] in circumstances

where [American] courts . . . would have asserted jurisdiction.'"

145 S. Ct. at 2119 (alterations and omission in original) (quoting

G. Born, Reflections on Judicial Jurisdiction in International


asking whether he had "ordered, carried out, or materially assisted
in extrajudicial and political killings and other acts of violence
against the Haitian people" on the form needed to enter the United
States and to obtain lawful permanent resident status.       He has
been sentenced to nine years' imprisonment and will be subject to
deportation proceedings upon the completion of his sentence. This
means that plaintiffs' assertions that he had entered the United
States legally are wrong. The court should take judicial notice
of these important facts.        See Medtronic Med. CR SRL v.
Feliciano-Soto, 

, 53 n.2 (1st Cir. 2023). This country
prohibits the admission of individuals who committed acts of
torture and extrajudicial killing, and defendant has been
convicted of visa fraud on those grounds.            See 

(a)(3)(E)(iii).    Those provisions of the Immigration and
Nationality Act adequately address these concerns. Furthermore,
defendant was tried before a Haitian court for the torture and
extrajudicial killing on the facts alleged here and was acquitted
of those charges. Given these facts, in my view, there is no basis
to think that this case presents an instance of the United States
being at risk of becoming a safe haven for torturers or murderers.


                                  - 54 -
Cases, 17 Ga. J. Int’l & Comp. L. 1, 15 (1987)); see also Kiobel,

 (declining to recognize cause of action in part

because it "would imply that other nations, also applying the law

of nations, could hale our citizens into their courts for alleged

violations of the law of nations occurring in the United States,

or anywhere else in the world"); Brief for Federal Petitioner at

47-48, Fuld, 

 (No. 24-20), 

, at *47-48

(acknowledging that the expansive exercise of U.S. jurisdiction

over    suits      involving     foreign       nationals          "could    invite       other

countries to assert blanket jurisdiction over U.S. nationals").

              The     Supreme     Court        has         further       warned     against

"thrust[ing]        [the    Judiciary]        into        the   unappetizing       task    of

'navigating foreign policy disputes belong[ing] to the political

branches.'"         Abitron,     600    U.S.        at    427   (third     alteration      in

original) (quoting Jesner v. Arab Bank, PLC, 

(2018)    (Gorsuch,        J.,   concurring          in    part    and     concurring      in

judgment)); see also Sosa, 

 (Scalia, J., concurring

in     part   and    concurring        in     judgment)         ("[H]olding       open    the

possibility that judges may create rights where Congress has not

authorized them to do so . . . countenances judicial occupation of

a domain that belongs to the people's representatives.").

                                             III.

              In    construing    a    statute,          courts    also    must    consider

"Congress's statement of purpose."                   Bittner v. United States, 598


                                            - 55 -
U.S. 85, 98 (2023); see also 

 at 98 n.6 ("A preamble, purpose

clause, or recital is a permissible indicator of meaning." (quoting

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal

Texts 217 (2012))).          The preamble of the TVPA states that it is

"[a]n Act to carry out obligations of the United States under the

United      Nations    Charter     and   other       international      agreements

pertaining to the protection of human rights."                  Pub. L. No. 102–

256, 

.         That purpose is carried out by the TVPA without

construing the statute to allow the two extraterritorial causes of

action at issue here.          Indeed, the CAT specifically declined to

require signatories to create such civil causes of action for

torture, in contrast with criminal prosecutions.

              The   ratification      history   of    the    CAT   shows   that    it

specifically declined to require civil causes of action for damages

for the claims asserted here.18          The U.S. Senate's ratification of

the CAT was subject to the understanding that article 14 "requires

a State Party to provide a private right of action for damages

only    for   acts    of    torture   committed      in     territory   under     the



       18 Without discussing whether plaintiffs' causes of action
run afoul of the Restatement of Foreign Relations or whether the
Restatement (Third) of Foreign Relations Law of the United States
(1987) or Restatement (Fourth) of Foreign Relations Law of the
United States (2018) would apply to this question, even under the
Fourth Restatement, "the permissibility and limits of universal
civil jurisdiction remain controversial."        See Restatement
(Fourth) of Foreign Relations Law § 413, cmt. d (Am. L. Inst.
2018).


                                       - 56 -
jurisdiction of that State Party."            Resolution of Ratification,

Treaty Doc. 100-20 (1990) (emphasis added).          The Executive Branch

explained that "[a]rticle 14 was in fact adopted with express

reference to 'the victim of an act of torture committed in any

territory under its jurisdiction,'" but the "committed in any

territory    under    its   jurisdiction"      clause    in    the   proposed

legislation, which was altered to become the CAT, had been "deleted

by mistake."     U.S. Dep't of State, Summary and Analysis of the

Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment   or   Punishment,    at   13-14;    see   also     Torture   Victim

Protection Act of 1989: Hearing on S. 1629 and H.R. 1662 Before

the Subcomm. on Immigr. & Refugee Affs., S. Comm. on the Judiciary,

101st Cong. (1990) (statement of John O. McGinnis, Deputy Assistant

Att'y Gen., Off. of Legal Couns., U.S. Dep't of Just.) (stating

that "the negotiating record of the [CAT] supports the view that"

the CAT "requir[es] each state party to provide means of redress

and compensation, such as a civil suit, for acts taking place

within their own territory, and specifically it declines to make

that requirement extraterritorial" (emphasis added)).

            Indeed,   nations   which   are    parties   to    the   CAT   have

objected to similar extraterritorial applications of the ATS.               See




                                  - 57 -
Kiobel,   

   (referencing    "recent   objections   to

extraterritorial applications of the ATS" by seven nations).

                                      IV.

            The canon of constitutional avoidance provides that

courts must "ascertain whether a construction of the statute is

fairly possible by which the [constitutional] question may be

avoided."   Perttu v. Richards, 

, ___, 

 (2025) (alteration in original) (quoting Monterey v. Del Monte

Dunes at Monterey, Ltd., 

 (1999)).               Relatedly,

courts    "ordinarily        construe[]   ambiguous    statutes   to   avoid

unreasonable interference with the sovereign authority of other

nations."    F. Hoffmann-La Roche Ltd. v. Empagran S.A., 

 (2004); see also Murray v. Schooner Charming Betsy, 

 (1804) ("[A]n act of Congress ought never

to be construed to violate the law of nations if any other possible

construction remains.").

            There is a serious question of whether extending the

TVPA to these facts violates notions of "prescriptive comity,"

which is "the respect sovereign nations afford each other by

limiting the reach of their laws," which "courts assume . . . has

been exercised when they come to interpreting the scope of laws

their legislatures have enacted."             See Hartford Fire Ins. Co. v.

California, 

 (1993) (Scalia, J., dissenting).




                                     - 58 -
         This concurrence is meant to provide helpful guideposts

on remand, as I see the issues and arguments.




                             - 59 -