This Week at The Ninth: Drug Testing and Lawyer Fees | Morrison & Foerster LLP – Left Coast Appeals

This week, the Ninth Circuit addresses the employment status of job applicants required to pass drug tests and the availability of an attorney’s fee award under Federal Rule of Civil Procedure 41 ( d).


The Court finds that applicants for a job in a supermarket chain were not employees at the time of the mandatory pre-employment drug test and therefore were not entitled to compensation for the test.

Sign: Judges Schroeder, Thomas and Bea, with Judge Schroeder writing the opinion.

Climax: “Drug testing, such as a pre-employment interview or physical examination, is an activity for securing a position, not a requirement for those already employed.”

Background: Plaintiff Alfred Johnson represents a class of former employees of WinCo Foods. Defendant WinCo Foods is a supermarket chain that requires job applicants to pass a mandatory drug test as part of their conditional job offer. The plaintiffs sued WinCo in California state court, seeking reimbursement of expenses necessary to pass the drug test; in short, they argued that they were employees of WinCo at the time of the test and therefore entitled to compensation for their time and travel. WinCo returned the case to federal court under the Class Action Fairness Act. The district court entered summary judgment for WinCo, finding that the class members were not employees of WinCo at the time of the drug test. The plaintiffs appealed.

Results: The Ninth Circuit confirmed. The panel considered the plaintiffs’ two arguments in turn. First, the committee ruled that the “control test” for employment does not apply. The plaintiffs argued that they were employees at the time of the drug test because they were under the “control” of WinCo. However, the Court determined that the control test was inapplicable because the plaintiffs were not actually working for WinCo at the time of the drug test; they were more job seekers. Second, the committee held that drug testing is not a post-employment condition. The plaintiffs argued that they were employees before the drug test, but that WinCo could terminate the employment contract if they tested negative. Again, the panel disagreed. The panel considered that any job offer was conditional on passing a drug test. Therefore, the drug test is a prerequisite and not a subsequent condition.


The Court finds that the attorneys’ fees are not recoverable as a “cost” as of right under Federal Rule of Civil Procedure 41(d).

Sign: Justices Wardlaw, Bea and Cain, Jr. (WD La.), with Justice Bea writing the opinion, and Justice Wardlaw concurring in part and dissenting in part.

Climax: “‘Fee’ is a term that has a long-standing definition that does not inherently include attorney’s fees.”

Background: Plaintiff Craig Moskowitz filed a class action lawsuit against American Savings Bank, FSB (“ASB”) for allegedly sending text messages to his cell phone without the consent required by the Telephone Consumer Protection Act. Moskowitz’s phone had texted ASB’s short code number — a short phone number a business can use to send and receive text messages — and the short code number returned automated responses. Moskowitz initially sued in Connecticut district court, but voluntarily dismissed that suit after ASB decided to dismiss for lack of personal jurisdiction. Moskowitz then filed a lawsuit in the District Court for the District of Hawaii. ASB sought summary judgment and costs under Rule 41(d) to recover costs it incurred defending the earlier lawsuit in Connecticut. The district court granted ASB’s motion for summary judgment, finding that each text message from Moskowtiz’s cellphone constituted prior express consent for each of ASB’s response texts on his cellphone. The district court granted ABS’s claim for costs of the Connecticut litigation, including attorney’s fees, under Rule 41(d).

Results: The Ninth Circuit partly affirmed and partly invalidated. On the merits, the Court found that the District Court properly granted summary judgment to ASB on Moskowitz’s claims because the type of messages Moskowitz sent to ASB provided the express consent required for each of Moskowitz’s responsive text messages. ‘ASB. On the issue of costs, the Court reversed the District Court’s decision to award attorney fees to the SBA under Rule 41(d). Under rule 41(d), the court explained, a court can award a party “costs” incurred in another litigation if the plaintiff has dismissed that litigation and then brought another action based on the same claims. against the same defendant. Although the Ninth Circuit has yet to decide whether attorneys’ fees are available as “costs” under Rule 41(d), other circuits have interpreted Rule 41(d) “costs” of four ways. The Sixth Circuit held that attorney’s fees are never available under Rule 41(d) because the rule does not explicitly provide for them. The Eighth Circuit concluded that an award of attorney’s fees under Rule 41(d) did not constitute an abuse of discretion. The Third, Fourth, Fifth, and Seventh Circuits have each ruled that courts may award attorneys’ fees as costs under Rule 41(d) if the substantive law underlying the claim provides for attorneys’ fees. attorney, and the Second, Fourth, and Tenth Circuits have held that courts have the discretion to award attorney fees pursuant to Rule 41(d) whenever there is evidence of bad faith, vexation , free shares or forum shopping in the deposit of the initial action. The Ninth Circuit found that the “costs” of Rule 41(d) did not as of right include attorneys’ fees and therefore as of right vacated the District Court’s award of attorneys’ fees in favor of the SBA under Rule 41(d). “Fees” is a term, the court explained, that has a long-standing definition that does not inherently include attorney’s fees. The Court has not decided one way or the other whether attorneys’ fees are available under Rule 41(d) if the underlying law so provides or if bad faith is shown because the TCPA does not provide for the awarding of attorneys’ fees to the prevailing party and bad faith was not alleged, much less proven.

Justice Wardlaw agreed in part and dissented in part. She agreed with much of the majority opinion, but would have set aside, rather than reversed, the district court’s award of attorney’s fees with instructions to first determine whether Moskowitz had acted in bad faith before deciding to award fees. Wardlaw J. reportedly joins circuits that argue that Rule 41(d) provides for the awarding of attorneys’ fees as part of costs where the underlying statute that is the basis of the original action would or in cases where the court finds that a plaintiff acted in bad faith. The US rule is that each litigant pays his own attorney’s fees, whether he wins or loses, unless a law or contract provides otherwise. But a review of the text and history of Rule 41(d) shows a sufficiently specific and explicit intent by Congress to give courts the discretion to deviate from the US rule and include attorneys’ fees. as “costs” under Rule 41(d). In particular, a previous version of Rule 41(d) made it clear that Congress intended the courts to have the discretion to award costs and, although the wording was later changed, the change was to be stylistic only. . Rule 41(d), Justice Wardlaw continued, would be rendered toothless if attorneys’ fees were excluded in all cases, because the costs associated with defending a trial are largely due to attorneys’ fees. not court costs. An award with fees actually deters litigants from abusing the system, an award without them is barely a slap on the writ.

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