Lyudmyla Pyankovska v. Sean Abid ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYUDMYLA PYANKOVSKA, No. 20-16294
personally and mother and next friend
of Aleskandr A Abid, a minor child, D.C. No.
and as mother and next friend of 2:16-cv-02942-
Irynas S Nezhurbida a minor child, JCM-BNW
Plaintiff-Appellant,
OPINION
and
RICKY MARQUEZ,
Plaintiff,
v.
SEAN ABID; JOHN JONES,
Defendants-Appellees,
and
ANGELA ABID,
Defendant.
2 PYANKOVSKA V. ABID
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 10, 2022
Pasadena, California
Filed April 18, 2023
Before: Mary H. Murguia, Chief Judge, and Barrington D.
Parker * and Kenneth K. Lee, Circuit Judges.
Opinion by Judge Parker
SUMMARY **
Wiretap Act
The panel vacated the district court’s judgment
dismissing Lyudmyla Pyankovska’s claims against John
Jones as barred under the Noerr-Pennington doctrine and
entering default judgment against Sean Abid in a wiretap
case.
Pyankovska alleged federal and wiretap violations and
state common law claims against Abid, her ex-husband, and
*
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PYANKOVSKA V. ABID 3
Jones, his attorney. She alleged that during a child custody
proceeding in Nevada state court, Abid had secretly recorded
conversations between her and their child, and that Jones had
filed selectively edited transcripts of the illegally recorded
conversations on the state court’s public docket.
The district court concluded that Jones’s alleged conduct
involved First Amendment petitioning activity, which is
protected by the Noerr-Pennington doctrine. The district
court entered default judgment against Abid on the grounds
that his responses to various discovery requests were
knowingly inaccurate and that he had proceeded in bad
faith. The district court awarded Pyankovska $10,000 in
statutory damages under the Federal Wiretap Act, but it did
not award punitive damages or litigation costs, nor did it
discuss or award other categories of damages ostensibly
available on her Nevada common-law claims.
The panel held that Jones violated the Federal Wiretap
Act, and it agreed with the district court that the vicarious-
consent doctrine did not apply and that Jones’s conduct was
not protected under Bartnick v. Vopper, 532 U.S. 514 (2001),
which carves out a narrow First Amendment exception to the
Federal Wiretap Act for matters of public importance. The
panel further held, however, that Jones’s conduct was not
protected under the Noerr-Pennington doctrine. The panel
concluded that Pyankovska’s lawsuit did not impose a
burden on petitioning rights because Abid prevailed in the
state court custody case, and Jones had no petitioning “right”
to use the transcripts. The panel held that filing illegally
obtained evidence on a public court docket is conduct not
immunized under Noerr-Pennington, and the Federal
Wiretap Act unambiguously applied to Jones’s conduct.
4 PYANKOVSKA V. ABID
The panel held that the district court incorrectly
computed statutory damages under the Federal Wiretap Act
because it did not consider whether Abid violated the statute
for more than 100 days, which would render the amount of
damages greater than $10,000. In addition, the district court
failed to adequately address other categories of damages to
which Pyankovska might be entitled, including punitive
damages, attorney’s fees, and damages on Nevada common-
law claims.
The panel vacated the district court’s judgment and
remanded for further proceedings.
COUNSEL
Brian Wolfman (argued), Madeline H. Meth, and Hannah
Mullen, Attorneys; Radiance Campbell, Alessandra Marie
Lopez, Lois Zhang, Matthew Calabrese, Holly Petersen, and
Nathan Winshall, Certified Law Students; Georgetown Law
Appellate Courts Immersion Clinic; Washington, D.C.; for
Plaintiff-Appellant.
Todd E. Kennedy (argued), Kennedy & Couvillier PLLC,
Las Vegas, Nevada, for Defendant-Appellee John Jones.
Alex Ghibaudo (argued), Alex B. Ghibaudo PC, Las Vegas,
Nevada, for Defendant-Appellee Sean Abid.
PYANKOVSKA V. ABID 5
OPINION
PARKER, Circuit Judge:
In December 2016, Lyudmyla Pyankovska sued her ex-
husband, Sean Abid, and his attorney, John Jones, in the
United States Court for the District of Nevada alleging
federal and state wiretap violations as well as various state
common law claims. She alleged that during a bitter child
custody proceeding in Nevada state court, her ex-husband
had secretly recorded conversations between her and their
child, and that Jones had filed selectively edited transcripts
of the illegally recorded conversations on the court’s public
docket. She sought statutory damages as well as other relief.
The district court granted Jones’s Rule 12(b)(6) motion to
dismiss the claims against him, concluding that Jones’s
conduct involved First Amendment petitioning activity,
which is protected by the Noerr-Pennington doctrine. 1
The district court allowed Pyankovska’s claims against
Abid to go forward. As discovery proceeded, the district
court concluded that Abid’s responses to various discovery
requests were knowingly inaccurate and that he had
proceeded in bad faith. The district court ultimately entered
default judgment against him and proceeded to an
assessment of damages. The court awarded Pyankovska
$10,000 in statutory damages under the Federal Wiretap Act
but did not award punitive damages or litigation costs, nor
1
The Noerr-Pennington doctrine, derived from two Supreme Court
cases, requires courts to construe ambiguous statutes to avoid burdening
petitioning activity protected by the First Amendment. See United States
v. Koziol, 993 F.3d 1160, 1171 (9th Cir. 2021).
6 PYANKOVSKA V. ABID
did it discuss or award other categories of damages
ostensibly available on her Nevada common-law claims.
On appeal, Pyankovska argues that when dismissing her
claims against Jones, the district court erroneously applied
Noerr-Pennington and miscalculated damages. We agree
and we reverse. We conclude that filing illegally obtained
evidence on a public court docket is conduct not immunized
under Noerr-Pennington. We also hold that the district court
incorrectly computed statutory damages and failed to
adequately address other categories of damages to which
Pyankovska might be entitled.
I.
At the center of this case is a highly acrimonious family
law dispute. Pyankovska and Abid divorced in 2010 and the
Nevada state court awarded them joint legal and physical
custody of their child. Their relationship continued to
deteriorate and in 2015, Pyankovska filed a motion for
contempt of court against Abid to modify their custody
arrangement and for various other relief. While the motion
was pending, Abid inserted a recording device into their
child’s backpack and surreptitiously recorded around twenty
hours of private conversations between the child and
Pyankovska in her home and car. Neither Pyankovska nor
the child knew that Abid was recording their conversations.
After obtaining the recordings, Abid used software to edit
and transcribe the recordings that he deemed useful in the
custody dispute and destroyed the original recordings.
Abid gave the transcripts of the recordings to his family-
law attorney, Jones. Jones submitted the transcripts to the
state court on the public docket as exhibits to Abid’s
declaration in support of his countermotion to modify the
custody arrangement. Pyankovska objected to the public
PYANKOVSKA V. ABID 7
disclosure of the transcripts, arguing that they had been
illegally obtained and could not be publicly disclosed.
Jones, on the other hand, argued that the submissions were
lawful because Abid was able to consent to the recordings
on behalf of his minor child under the vicarious-consent
doctrine, a species of “consent” he argued was an exception
to the otherwise broad ban under federal and Nevada law on
the disclosure and use of illegally obtained wiretap
communications. 2
The state court concluded that the vicarious-consent
doctrine did not apply because the recordings occurred in
Pyankovska’s home and Abid neither had physical custody
nor a good-faith basis for asserting vicarious consent.
Although the state court held that the recordings could not
be used as independent evidence, the court allowed the
recordings to be provided to a psychologist appointed by the
court to assist it in resolving the custody motion. The
psychologist, relying in part on the transcripts, concluded
that Pyankovska’s behavior was “creating confusion,
distress, and divided loyalty in the child.” Abid v. Abid, 406
P.3d 476, 478 (2017) (internal quotation omitted). After
considering the psychologist’s testimony and other
evidence, the court awarded Abid primary physical custody
of the child. Id. at 772.
Pyankovska appealed to the Nevada Supreme Court,
where Abid again prevailed. The court acknowledged that
“[b]ecause neither the child nor the mother consented to this
recording, the father’s actions likely violated NRS 200.650,
2
Under the vicarious-consent doctrine, a parent with physical custody of
a child may record conversations to which the child is a party. See, e.g.,
Pollock v. Pollock, 154 F.3d 601, 607 (6th Cir. 1998).
8 PYANKOVSKA V. ABID
which prohibits the surreptitious recording of nonconsenting
individuals’ private conversations.” Id. at 477. The Nevada
Supreme Court, however, concluded that the controlling
question was “whether the [state] court abused its discretion
by providing the recordings to a psychologist appointed by
the court to evaluate the child’s welfare.” Id. On this issue,
the Nevada Supreme Court held that the state court “did not
abuse its discretion in providing the recordings to the expert
because reviewing them furthered the expert’s evaluation of
the child’s relationship with his parents and aided the [state]
court’s determination as to the child’s best interest.” Id. at
481–82.
The Nevada Supreme Court clarified that it was
expressing no opinion as to the legality of Abid’s conduct.
Id. at 479. The court reasoned that, even if the recordings
were obtained illegally, any alleged illegality did not render
them per se inadmissible in a child custody proceeding
where the paramount concern was the “best interests” of the
child. Id. The court specified that “we by no means condone
[Abid’s] actions. Rather, we have determined that the
potential deterrent effect of ignoring [Abid’s] evidence is
outweighed by the State’s overwhelming interest in
promoting and protecting the best interests of its children.”
Id. (internal quotation omitted).
At that point, Pyankovska asked the Nevada Supreme
Court to seal the transcripts and to require the state trial court
to do the same. The court granted the motion to seal the
documents on its docket but ruled that Pyankovska must
request the trial court to seal the materials on its docket.
Pyankovska filed a motion to do so, but while it was
pending, Abid uploaded the motion to seal and the illegally
obtained transcripts to public Facebook pages. There, Abid
called Pyankovska “a bully child abuser” who should not “be
PYANKOVSKA V. ABID 9
able to hide behind a [motion to] seal,” and the posts were
widely disseminated, viewed, and commented upon.
In December 2016, Pyankovska sued Abid and Jones in
the District of Nevada alleging violations of the Federal
Wiretap Act, the Nevada statutory analogue, and asserting
various other Nevada common-law claims. Jones moved
under Rule 12(b)(6) to dismiss the complaint, contending
that his conduct was protected by the vicarious-consent
doctrine and that he had a good faith belief in the legality of
this conduct. The district court granted the motion on other
grounds.
First, the district court held that the vicarious-consent
doctrine did not apply because Abid did not have actual
custody over the son at the time the recordings were made as
required by the doctrine. Second, the court held that none of
Jones’s arguments involving good faith reliance on legal
authority applied to Jones’s submission of the transcript.
The court reasoned that “[i]f the court were to adopt
defendant’s reading of the good faith reliance language, then
any time a defendant alleges a belief that his conduct did not
violate the Wiretap Act, he obtains a complete defense to
liability.” Pyankovska v. Abid, No. 2-16-CV-2942, 2017
WL 5505037, at *4 (D. Nev. Nov. 16, 2017) (“Abid I”).
Finally, the court held that any state litigation privilege to
submit the illegal transcripts did not trump Jones’s federal
obligations under the Wiretap Act.
Despite these conclusions, the district court found that
Jones’s conduct was protected by the Noerr-Pennington
doctrine. The court reasoned, tersely, that because “Jones’
complained-of conduct consisted solely of judicial advocacy
that is protected by the First Amendment, he cannot be held
10 PYANKOVSKA V. ABID
liable under the Wiretap Act or under plaintiff’s other
theories of liability.” Id. at *5.
The district court, however, allowed Pyankovska’s
claims against Abid to proceed. During discovery, the
district court found that Abid had provided inaccurate
responses to discovery requests. Despite the court granting
Abid opportunities to supplement his responses, Abid
continued to “disregard . . . obligations” and “flouted the
rules and procedures of th[e] court.” Pyankovska v. Abid,
No. 2-16-CV-2942, 2019 WL 6609690, at *5 (D. Nev. Dec.
5, 2019) (“Abid II”). Accordingly, the court concluded that
Abid’s “conduct in discovery ha[d] been baseless and in bad
faith” and entered a default judgment under Federal Rule of
Civil Procedure 37(b) against him on all Pyankovska’s
claims. Id.Pyankovska submitted an accounting of her actual
damages claiming $3,125 in medical expenses and $1,413 in
legal expenses. She also sought statutory damages under the
Federal Wiretap Act as well as punitive damages. Abid did
not submit declarations or any other evidence in opposition
to Pyankovska’s showing.
The district court awarded $10,000 in statutory damages.
Pyankovska v. Abid, No. 2-16-CV-2942, 2020 WL 569877,
at *4 (D. Nev. Feb. 5, 2020) (“Abid III”). Pyankovska
moved to alter or amend the judgment arguing that the court
miscalculated statutory damages and should have awarded
punitive and litigation costs under the Wiretap Act and
compensatory and punitive damages on her common law
claims. The district court summarily denied the motion,
holding that it had “considered all the arguments and
accounting of the parties in making its determination.”
PYANKOVSKA V. ABID 11
Pyankovska v. Abid, No. 2-16-CV-2942, 2020 WL
13536217, at *1 (D. Nev. June 24, 2020) (“Abid IV”).
This appeal followed.
We review de novo the district court’s dismissal of the
complaint under Rule 12(b)(6). Judd v. Weinstein, 967 F.3d
952, 955 (9th Cir. 2020). We construe “as true all well-
pleaded allegations of material fact and constru[e] those
facts in the light most favorable to the non-moving party.”
Id.II.
A.
The Federal Wiretap Act, Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, as amended by the
Electronic Communications Privacy Act of 1986, prohibits
the intentional interception, disclosure, or use of any oral
communication without the consent of at least one party to
the conversation:
(1) Except as otherwise specifically provided
in the chapter any person who — . . . (c)
intentionally discloses, or endeavors to
disclose, to any other person the contents of
any wire, oral, or electronic communication,
knowing or having reason to know that the
information was obtained through the
interception of a wire, oral, or electronic
communication in violation of the
subsection; (d) intentionally uses, or
endeavors to use, the contents of any wire,
oral, or electronic communication, knowing
or having reason to know that the information
12 PYANKOVSKA V. ABID
was obtained through the interception of a
wire, oral, or electronic communication in
violation of this subsection shall be punished
as provided in subsection (4) or shall be
subject to suit as provided in subsection (5).
18 U.S.C. § 2511(1)(c)–(d). Under the Federal Act,
“intercept” is defined as the “acquisition of the contents of
any wire, electronic, or oral communication through the use
of any electronic, mechanical, or other device.” 18 U.S.C. §
2510(4). The Federal Act further provides that “no part of
the contents of [any illegally intercepted] communication
and no evidence derived therefrom may be received in
evidence in any trial, hearing, or other proceeding in or
before any court . . . .” 18 U.S.C. § 2515. The Federal Act
authorizes a civil action for “any person whose wire, oral, or
electronic communication is intercepted, disclosed, or
intentionally used in violation of this chapter.” 18 U.S.C. §
2520(a). 3
There are two statutory exceptions. First, is court
authorization. This exception is not at issue in this case. 18
U.S.C. §§ 2511(2)(e), 2516–18. The second is consent,
where a communication may lawfully be intercepted by a
party to the communication or when at least one party to the
communication has given prior consent. 18 U.S.C. §
2511(2)(c)–(d). The Federal Act requires that to be liable, a
person who discloses the contents of recordings, must “know
or have reason to know” the communication was obtained in
3
The Nevada Wiretap Act, patterned on the Federal Act, similarly
prohibits the interception or disclosure of any wire, oral or electronic
communication. Nev. Rev. Stat. §§ 200.610–.690; see id. § 200.650
(allowing for civil recovery).
PYANKOVSKA V. ABID 13
violation of the Act—that is, without consent or court-
ordered authorization. 18 U.S.C. § 2511(1)(c)–(d).
Jones plainly “used” and “disclosed” the intercepted
communications when he filed the transcripts on the public
docket in state court. 18 U.S.C. § 2511(1)(c)–(d). Thus, the
text of these provisions establish that Jones violated the
Federal Act unless he is excused by some exculpatory
doctrine. On appeal, Jones essentially makes three
contentions. First, he argues that because Abid had consent
to make the recordings under the vicarious-consent doctrine,
he did not “have reason to know” that the recordings were
illegal. Second, Jones argues that, under Bartnicki v.
Vopper, 532 U.S. 514 (2001), his posting of the transcripts
constituted conduct protected by the First Amendment.
Third, Jones argues that he is immunized from liability by
the Noerr-Pennington doctrine. The district court disagreed
with the first two contentions but agreed with the third.
B.
The vicarious-consent doctrine is not the law of Nevada
or this Circuit. Patching together authority from other
jurisdictions, we take the doctrine to mean that a parent who
has physical custody of a child may consent to the recording
of conversations on behalf of minor children, so long as the
recording parent believes that doing so is in the best interest
of the child. See Pollock v. Pollock, 154 F.3d 601, 609 (6th
Cir. 1998). In West Virginia Department of Health &
Human Resources v. David L, a case involving similar facts,
the West Virginia Supreme Court held that a father violated
the Federal Wiretap Act when he recorded conversations
between his children and their mother (his ex-wife) with a
tape recorder secretly installed in the mother’s home. 453
S.E.2d 646, 654 (W. Va. 1994). The court stressed that the
14 PYANKOVSKA V. ABID
dispositive factor was that the recording occurred in the
mother’s house and that the father had “absolutely no
dominion or control” over the mother’s house. Id. Here, the
district court similarly held that the doctrine did not apply
because Abid did not have custody over the child at the time
the recordings were made. We agree.
C.
Next, Jones argues that his conduct is protected under
Bartnicki. There, the Supreme Court carved out a narrow
First Amendment exception to the Federal Wiretap Act.
Bartnicki involved a recorded cellphone conversation during
a contentious, very public, collective-bargaining negotiation
between a teacher’s union and a local school board. An
unidentified person recorded a cell phone conversation
between the chief negotiator and the union president
concerning the status of negotiations. 532 U.S. at 517–19.
Petitioners alleged that the head of a local organization
opposed to the union’s demands, obtained the recording, and
disclosed it to members of the school board and
representatives of the media. Id. at 519. Members of the
media then obtained and disclosed the intercepted
conversations to the public. Id.The Supreme Court held that while the disclosures
violated federal and state wiretap statutes, the individuals
were protected by the First Amendment. Id. at 535. The
Court reasoned that, “[i]n these cases, privacy concerns give
way when balanced against the interest in publishing matters
of public importance. . . . One of the costs associated with
participation in public affairs is an attendant loss of privacy.”
Id. at 534. In reaching its conclusion, the Court placed
significance on the public nature of the intercepted
communications, noting that the union negotiations were
PYANKOVSKA V. ABID 15
“contentious” and were the subject of intense media
attention. Id. at 518.
The conversations between Pyankovska and the child
occurred in the most private of spaces—their home and
car—and exclusively concerned intimate relations between
a child and his parents. While the conversations may have
been important within the family-court context to determine
custody arrangements, they were matters of no public
importance and consequently involved none of the First
Amendment concerns that were dispositive in Bartnicki. For
these reasons, we conclude that Bartnicki does not apply.
D.
The district court held, without elaboration, that the
Noerr-Pennington doctrine immunized Jones from liability
because Jones’s “introduction of evidence into the state court
case constitutes protected First Amendment activity.” Abid
I, 2017 WL 5505037, at *4. We disagree.
The Noerr-Pennington doctrine derives from the First
Amendment’s guarantee of “the right of the people . . . to
petition the government for a redress of grievances.” U.S.
Const. amend. I. The doctrine originally arose in the
antitrust context from the Supreme Court’s decisions in
Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961), and United Mine
Workers v. Pennington, 381 U.S. 657 (1965). In Noerr,
trucking companies sued railroad companies alleging that
the railroads’ lobbying efforts to influence legislation
regulating trucking violated the Sherman Act. 365 U.S. at
129. The Supreme Court held that “the Sherman Act does
not prohibit . . . persons from associating . . . in an attempt
to persuade the legislature or the executive to take particular
action with respect to a law that would produce a restraint or
16 PYANKOVSKA V. ABID
a monopoly.” Id. at 136. The Supreme Court observed that
construing the Sherman Act to reach such petitioning
conduct “would raise important constitutional questions,”
and “we cannot . . . lightly impute to Congress an intent to
invade . . . freedoms” protected by the Bill of Rights. Id. at
138. Pennington extended Noerr’s immunity to antitrust
lobbying activities directed toward executive branch
officials. 381 U.S. at 669–70. The Supreme Court has since
applied this doctrine outside the antitrust field. See Sosa v.
DIRECTV, Inc., 437 F.3d 923, 930 (9th Cir. 2006) (citing BE
& K Construction Co. v. NLRB, 536 U.S. 516, 525 (2002)).
This Circuit has therefore explained that Noerr-
Pennington “ensures that those who petition the government
for redress of grievances remain immune from liability for
statutory violations, notwithstanding the fact that their
activity might otherwise be proscribed by the statute
involved.” White v. Lee, 227 F.3d 1214, 1231 (9th Cir.
2000). This protection rests on the premise that Congress
does not intend the statutes it promulgates to infringe on the
First Amendment when other interpretations of the language
it selected are possible. The doctrine is, among other things,
a rule of statutory construction that requires courts to ask
whether the statute at issue may be construed to avoid
burdening conduct protected by the First Amendment. See
Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd., 711 F.3d
1136, 1139 (9th Cir. 2013); Sosa, 437 F.3d at 931 & n.5.
In this Circuit, there is a three-step test to determine
whether conduct that allegedly violates a statute is
immunized from liability. Under the test, the court asks: “(1)
whether the lawsuit imposes a burden on petitioning rights,”
“(2) whether the alleged activities constitute protected
petitioning activity,” in other words, “neither the Petition
Clause nor the Noerr-Pennington doctrine protects sham
PYANKOVSKA V. ABID 17
petitions,” and “(3) whether the statute at issue may be
construed to [avoid] that burden. If the answer at each step
is ‘yes,’ then a defendant’s conduct is immunized under
Noerr-Pennington.” B&G Foods N. Am., Inc. v. Embry, 29
F.4th 527, 535 (9th Cir. 2022); Kearney v. Foley & Lardner,
LLP, 590 F.3d 638, 645 (9th Cir. 2009).
The district court erred in holding that Noerr-Pennington
immunized Jones from liability. Jones’s arguments face
insurmountable hurdles under step one. First, Pyankovska’s
lawsuit seeks to hold Jones liable in damages for disclosing
illegally intercepted communications in the state court
custody proceedings. But Jones does not credibly argue that
a successful damages action in federal court imposes an
unconstitutional “burden” on the state court litigation. The
illegally obtained communications found their way into state
court where the evidence was reviewed by the court-
appointed psychologist and by the court and Abid prevailed:
he won the custody litigation. In light of Abid’s victory, it
is hard for Jones credibly to argue that the litigation of the
custody motion was “burdened.”
Second, Noerr-Pennington “[i]mmunity . . . applies only
to what may fairly be described as petitions . . . .” Freeman
v. Lasky, Haas & Cohler, 410 F.3d 1180 1184 (9th Cir.
2005). We have explained that “[a] complaint, an answer, a
counterclaim and other assorted documents and pleadings,
in which plaintiffs or defendants make representations and
present arguments to support their request that the court do
or not do something, can be described as petitions without
doing violence to the concept.” Id. Under this definition,
Jones and Abid were entitled to participate and did
participate in petitioning activity. But once they were in
court, they were obligated to play by the rules applicable to
all litigants. Federal and state rules limit in enumerable ways
18 PYANKOVSKA V. ABID
what litigants can say and do. In federal courts, the Federal
Rules of Civil Procedure and Evidence, page limitations,
limitations on oral argument time, sanctions under Rule 11
of the Federal Rules Civil Procedure, as well as rulings by
the court excluding testimony before and during trial do just
that. The sections of the Federal Act that prohibit the
disclosure of evidence obtained in violation of the Federal
Act and provide that “no part of the contents of [any illegally
intercepted] communication and no evidence derived
therefrom may be received in evidence in any trial, hearing,
or other proceeding in or before any court” are similar
restrictions that apply in both state and federal courts. 18
U.S.C. § 2515. 4
Jones and Abid’s right to petition in a case with no public
significance does not grant Jones immunity from the
penalties prescribed by Congress for those who violate the
Wiretap Act. Once they were in state court, Jones and Abid
were not at liberty to set their own rules. Jones was free to
file and argue the custody motion—i.e., to petition—but he
was not free to support that motion with illegal evidence.
Sosa, 437 F.3d at 933. In other words, because Jones had no
petitioning “right” to use the transcripts in the first place,
requiring him to face the consequences specified by
Congress for those who violated the law is not a cognizable
“burden” on any conduct he was lawfully entitled to
participate in. For these reasons, Jones fails at step one and
Noerr-Pennington cannot protect him from liability.
4
See Gelbard v. United States, 408 U.S. 41, 51 (1972) (stating that the
Federal Wiretap Act functions as a civil exclusionary rule, denying the
perpetrator of a Wiretap Act violation “the fruits of his unlawful actions
in all civil and criminal proceedings”).
PYANKOVSKA V. ABID 19
Accordingly, we need not analyze steps two and three. 5
In any event, it is worth emphasizing that the Wiretap Act
unambiguously applies to Jones’s conduct. See Embry, 29
F.4th at 540 (expressly foreclosing Noerr-Pennington
immunity where “the statute clearly provides otherwise”)
(quoting Sosa., 437 F.3d at 931). The Wiretap Act prohibits
in no uncertain terms the interception, disclosure, or use in
court of oral communications obtained in violation of the
Act. See 18 U.S.C. § 2511(1)(c)–(d). The prohibitions in
the Nevada Act are similarly clear. See Nev. Res. Stat.
§§ 200.620–.690. Here, Abid intercepted communications
without consent in violation of the Wiretap Act, and Jones
used and disclosed those illegally obtained, selectively
edited communications by attaching them as exhibits to a
motion in state court.
The legislative history of the Wiretap Act makes clear
that Congress intended it to apply to domestic relations
disputes. Congress knew that divorcing spouses were
increasingly using electronic surveillance techniques to gain
advantage in marital disputes and, when drafting the Act,
viewed interceptions in this context as an area of particular
concern. United States v. Jones, 542 F.2d 661, 666–69 (6th
Cir. 1976). Senator Hruska, one of the bill’s co-sponsors,
announced that the Wiretap Act would impose a “broad
prohibition on private use of electronic surveillance,
particularly in domestic relations” cases. Id. at 669 (citing
5
For example, at step three, we ask whether the Wiretap Act “may be
construed to [avoid] that burden” on petitioning activity. Embry, 29
F.4th at 535 (emphasis added). As we have said, complying with laws
and rules of general application to litigants in court imposes no legally
cognizable burden on Jones’s conduct that is protected by the First
Amendment’s Petition Clause, so there is no work for Noerr-Pennington
and the canon of constitutional avoidance to do.
20 PYANKOVSKA V. ABID
S. Rep. No. 90-1097, at 151 (1968)). As the prohibitory
provisions in these Acts are pellucid, not ambiguous, we
readily conclude that Jones violated the Acts.
For these reasons we vacate the judgment of the district
court insofar as it applied Noerr-Pennington and remand for
further proceedings at which Jones’s other contentions in
mitigation or defense may receive further consideration as
the district court deems appropriate.
III.
A district court’s award of damages is reviewed for an
abuse of discretion. Caudle v. Bristow Optical Co., 224 F.3d
1014, 1023 (9th Cir. 2000), as amended on denial of reh’g
(Nov. 2, 2000). A denial of litigation costs is also reviewed
for an abuse of discretion. See Ass’n of Mex.-Am. Educators
v. State of California, 231 F.3d 572, 592 (9th Cir. 2000).
“An abuse of discretion is a plain error, discretion exercised
to an end not justified by the evidence, a judgment that is
clearly against the logic and effect of the facts as are found.”
Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967, 977
(9th Cir. 2003) (citation and internal quotation marks
omitted).
A.
The district court awarded Pyankovska $10,000 in
statutory damages. It reasoned that “[t]he statute in this case
instructs the court to award the greater of plaintiff’s actual
damages incurred as a result of the violation or $10,000” and
found that “[b]ecause plaintiff’s actual damages of $4,589
are less than” $10,000, Pyankovska was owed $10,000 to
compensate her for Abid’s violation of the Wiretap Act.
Abid III, 2020 WL 569877, at *4. The district court did not
address Pyankovska’s arguments on her state law claims.
PYANKOVSKA V. ABID 21
Instead, in response to Pyankovska’s motion to alter or
amend the judgment, the district court stated concisely that
“plaintiff claims that the court did not consider her
arguments regarding compensatory and punitive damages on
her state law claims. . . . This court considered all the
arguments and accounting of the parties in making its
determination on damages.” Abid IV, 2020 WL 13536217,
at *1. On appeal, Pyankovska challenges the statutory
damages award as incorrectly calculated and the state law
damages as inadequate.
Violations of the Wiretap Act provides for a “civil
action” in favor of any person whose oral communication “is
intercepted, disclosed, or intentionally used in violation of
this chapter.” 18 U.S.C. § 2520(a); see Nev. Rev. Stat. §
200.690 (similar). “Appropriate relief” in a federal civil case
includes equitable relief, damages, punitive damages, and
reasonable attorney’s fees and “other litigation costs.” 18
U.S.C. § 2520(b). The Wiretap Act provides that “the court
may assess as damages whichever is the greater of (A) the
sum of the actual damages suffered by the plaintiff and any
profits made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a
day for each day of violation or $10,000.” 18 U.S.C. §
2520(c)(2); see also Nev. Rev. Stat. § 200.690(1)(b)
(similar). We have held that “the statutory-damages
provision clarifies that violations are remedied on a per-day
basis, not a per-occurrence basis. . . . And were a single
violation to extend over multiple days, the number of
assessments would be based on the number of days the
violation continued.” Bliss v. CoreCivic, Inc., 978 F.3d
1144, 1149 (9th Cir. 2020).
Abid argues that the statutory damages award was proper
as the court “may” award statutory damages and therefore
22 PYANKOVSKA V. ABID
gives courts discretion not to award statutory damages at all.
But the district court erred in failing to consider whether
Abid violated the statute for more than 100 days, which
would render the amount greater than $10,000.
The district court concluded that “[b]ecause plaintiff’s
actual damages of $4,589 are less than the statutory damages
authorized by 18 U.S.C. § 2520(c)(1), the court awards
plaintiff statutory damages in the amount of $10,000 to
compensate her for defendant’s violation of the Wiretap
Act.” Abid III, 2020 WL 569877, at *4. However, as
Pyankovska correctly notes, once the district court decided
that statutory damages should be awarded, it was bound by
the statutory text, which permits the court to award $10,000
only when that award would be greater than both “the sum
of the actual damages suffered by the plaintiff and any
profits made by the violator” and “$100 a day for each day
of violation.” 18 U.S.C. § 2520(c)(2)(A)–(B). The $10,000
liquidated damages amount under § 2520(c)(2)(B) is
designed to compensate a claimant for all of a defendant’s
violations under the Act, unless that defendant has violated
the Act on more than 100 separate days, in which case
compensation is $100 for each such day. See Smoot v.
United Transp. Union, 246 F.3d 633, 646 (6th Cir. 2001).
Here, Pyankovska contends that Abid violated the
Wiretap Act over at least 707 days by (1) intercepting
Pyankovska’s conversations with the child using a recording
device, (2) disclosing contents of the recordings in a
declaration submitted to the state court, and (3) disclosing
and intentionally using the transcripts by posting them and
leaving them available on various public Facebook groups
for approximately two years. And if Pyankovska is correct,
707 days of violations would mean a statutory damage award
of $70,700, not $10,000. See 18 U.S.C. § 2520(c)(2). The
PYANKOVSKA V. ABID 23
district court erred in its analysis of the statutory damages
award, and we remand so that the district court may revisit
its calculations.
The district court also appears to have conflated punitive
damages and litigation costs and discussed those awards as
actual damages suffered. In addition to statutory damages,
the Wiretap Act allows for punitive damages “in appropriate
cases,” 18 U.S.C. § 2520(b)(2), and “reasonable attorney’s
fee and other litigation costs reasonably incurred,” 18 U.S.C.
§ 2520(b)(3). To receive punitive damages, a plaintiff “must
show that [the] defendant[] acted wantonly, recklessly, or
maliciously.” Jacobson v. Rose, 592 F.2d 515, 520 (9th Cir.
1978). Here, the court appeared to recognize that Abid
“deliberately violated the Wiretap Act for personal gain” and
referred to “defendant’s flagrant violation of her privacy”
but then concluded that these factors counseled only towards
an award of $10,000 in statutory damages. Abid III, 2020
WL 569877, at *4. While it was within the court’s discretion
to decide whether to award punitive damages and attorney’s
fees, we remand so that the district court can provide more
clarity as to the appropriateness of punitive damages and
attorney’s fees.
B.
Pyankovska argues that the district court further erred by
ignoring her damages request on her Nevada invasion-of-
privacy and infliction-of-emotional-distress claims, though
these claims were part of the default judgment entered
against Abid. See United Nat’l Ins. Co. v. R & D Latex
Corp., 141 F.3d 916, 918–19 (9th Cir. 1998) (finding that
the district court abused its discretion in failing to make any
findings and to state its reasoning). In the district court’s
order on Pyankovska’s motion to amend a judgment, the
24 PYANKOVSKA V. ABID
court simply stated that “plaintiff claims that the court did
not consider her arguments regarding compensatory and
punitive damages on her state law claims. This court
considered all the arguments and accounting of the parties in
making its determination on damages.” Abid IV, 2020 WL
13536217, at *1. Abid argues that the district court
considered Pyankovska’s evidence but was simply not
convinced.
The district court did not address Pyankovska’s
invasion-of-privacy and infliction-of-emotional-distress
claims nor did it discuss the evidence she submitted in
support of these claims. The court’s discussion of damages
associated with the state common law claims is relegated to
a very brief comment in response to Pyankovska’s motion to
amend the judgment. We therefore remand to afford the
district court the opportunity to provide additional
explanation concerning Pyankovska’s eligibility for
compensatory and punitive damages on the Nevada
common-law claims.
CONCLUSION
For these reasons, we VACATE and REMAND for
further proceedings consistent with this opinion.