Lyudmyla Pyankovska v. Sean Abid

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.