FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HILDA L. SOLIS, SECRETARY OF
LABOR, UNITED STATES DEPARTMENT
OF LABOR, No. 10-35590
Plaintiff-Appellant,
v. D.C. No.
3:08-cv-05479-BHS
STATE OF WASHINGTON, DEP’T OF OPINION
SOC. & HEALTH SERVS.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
August 1, 2011—Seattle, Washington
Filed September 9, 2011
Before: John T. Noonan and Milan D. Smith, Jr.,
Circuit Judges, and Jeremy Fogel, District Judge*
Opinion by Judge Fogel
*The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
17171
17174 SOLIS v. STATE OF WASHINGTON DSHS
COUNSEL
M. Patricia Smith, Solicitor of Labor; William C. Lesser, Act-
ing Associate Solicitor; Paul L. Frieden, Counsel for Appel-
late Litigation; Rachel Goldberg, Attorney, for the plaintiff-
appellant.
Robert M. McKenna, Washington State Attorney General;
Kara A. Larsen, Assistant Attorney General Labor and Per-
sonnel Division, for the defendant-appellee.
OPINION
FOGEL, District Judge:
The Secretary of Labor1 has filed a complaint against the
State of Washington, Department of Social and Health Ser-
vices (“DSHS”), alleging that DSHS has failed to pay over-
time compensation to certain social workers in violation of
the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
§ 201, et seq. (“FLSA”). The district court granted summary
1
The complaint was filed by Elaine L. Chao, in her capacity as Secre-
tary of Labor. The caption has been updated to reflect the appointment of
Hilda L. Solis to that position.
SOLIS v. STATE OF WASHINGTON DSHS 17175
judgment in favor of DSHS, concluding that the social work-
ers come within the “learned professional” exemption to the
FLSA’s overtime pay requirements. The Secretary appeals.
To avail itself of the “learned professional” exemption, an
employer must show that a position requires advanced knowl-
edge customarily acquired by a prolonged course of special-
ized intellectual instruction. Because the social worker
positions at issue here require only a degree in one of several
diverse academic disciplines or sufficient coursework in any
of those disciplines, we conclude that DSHS has not met its
burden of showing that its social worker positions “plainly
and unmistakably” meet the regulatory requirement. Accord-
ingly, we reverse and remand for further proceedings consis-
tent with this opinion.
I.
DSHS is a public agency created by the Washington legis-
lature to “integrate and coordinate all those activities involv-
ing provision of care for individuals who, as a result of their
economic, social or health condition, require financial assis-
tance, institutional care, rehabilitation or other social and
health services.” Wash. Rev. Code § 43.20A.10. The Chil-
dren’s Administration is an agency within DSHS tasked with
the mission of protecting abused and neglected children. It
employs social workers in forty-four field offices who iden-
tify the needs of children and families and arrange for services
to assure their safety and well-being. While the work of indi-
vidual social workers varies, their responsibilities include
investigating child abuse and neglect, developing and recom-
mending appropriate treatment plans to courts, evaluating
child and family progress in meeting treatment plans, making
placement decisions, and recommending whether parental
rights should be terminated.
DSHS asserts that it has established “rigorous educational
qualifications” for its social workers. Candidates for Social
17176 SOLIS v. STATE OF WASHINGTON DSHS
Worker 2 must have at least a “[b]achelor’s degree or higher
in social services, human services, behavioral sciences, or an
allied field,” as well as eighteen months as a Social Worker
1 or two years’ experience in an equivalent position. Candi-
dates for Social Worker 3 must meet the same educational
requirements and have additional work experience. Within
one year of their appointment, new employees in these posi-
tions must complete a formal training program that includes
four weeks of classroom instruction and two weeks of field
instruction.
DSHS uses an internal document entitled “Social Worker
Minimum Qualifications Cheat Sheet” to assess whether can-
didates meet the educational requirements. That document
sets out the degree requirements as follows:
Education/Degrees:
Social Services, human services, behavioral sciences
or allied field (Not Social Science)
Acceptable: Counseling, Psych[ology], Social Work,
Human Services, Sociology, Child Development,
Family Studies, Pastoral Counseling, Anthropology,
Gerontology, Therapeutic Recreation, Education,
Therapeutic Fields, Criminal Justice.
Not Acceptable: History, Economics, Civics, Philos-
ophy, Communications, Archeology, Nursing, The-
ology, Pastoral Studies, Religion, Recreation,
Women’s Studies, Native American Studies, Public
Administration, Political Science, Law & Justice,
Human Resources, Leisure Studies, Physical Educa-
tion, Law Enforcement, Liberal Arts.
(Note: These Courses would most often be accept-
able under the broader heading of Social Sciences
and upon review of transcripts if either 30 semester
hours or 45 quarter credits were found that fall under
SOLIS v. STATE OF WASHINGTON DSHS 17177
Social Services, they could be accepted for Social
Workers)
Business Administration, Computer Science, Natural
Sciences, Physical Sciences, Math, Fine Arts, Gen-
eral Studies.
According to the DSHS manager in charge of screening
applicants, “if a candidate’s degree is from an accredited insti-
tution and the title of the degree falls within one of the accept-
able fields, or they have the requisite number of semester
hours or quarter credits in one of those fields, they have met
the educational requirements.” If a candidate’s degree is not
in an acceptable field, the candidate’s coursework is evaluated
to determine if the requisite number of credits are from fields
on the list of acceptable degrees or are from courses similar
to those in the curricula of acceptable fields at the University
of Washington and Eastern Washington University.
In 2006, the Department of Labor (“DOL”) initiated an
investigation of DSHS after receiving a complaint from a
DSHS employee. The DOL investigator concluded that the
Social Worker 2 and Social Worker 3 positions do not qualify
for the “learned professional” exemption of the FLSA. The
Secretary subsequently initiated this action.
II.
The district court concluded that the positions at issue
require a sufficient amount of specialized intellectual instruc-
tion to qualify for the “learned professional” exemption.
According to the district court, DSHS’s requirements “are
plainly more exacting than a bachelor’s degree in ‘any field’
as stated in 29 [C.F.R] § 541.301(d), and more exacting than
the caseworker’s requirements outlined in the Department of
Labor’s 2005 opinion letter.” The court also concluded that
DSHS’s requirement that social workers have at least eighteen
months of experience in social work and that they be required
17178 SOLIS v. STATE OF WASHINGTON DSHS
to complete additional formal training weighed in favor of a
finding of specialized training.
The district court relied in large part on Chatfield v. Chil-
dren’s Services, Inc., 555 F. Supp. 2d 532, 536-37 (E.D. Pa.
2008). In that case, the court held that truancy prevention case
managers, who were required to have a bachelor’s degree in
social work, human services, or a related field, plus three
years of work experience, came within the “learned profes-
sional” exemption. The court concluded that the degree
requirements for a truancy prevention case manager position
were sufficiently more specialized than a degree in “social
sciences” to amount to “a specialized degree in a field related
to the work [applicants] will perform.” Id. at 537.
III.
We review a district court’s grant of summary judgment de
novo. See Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 914
(9th Cir. 2003). “A district court’s determinations regarding
exemptions to the FLSA are questions of law that we review
de novo. However, findings of fact underlying a legal deter-
mination are reviewed for clear error.” Cleveland v. City of
L.A., 420 F.3d 981, 988 (9th Cir. 2005).
IV.
[1] The FLSA requires that employers pay overtime com-
pensation for all hours worked in excess of forty hours in a
week unless a particular exemption applies. 29 U.S.C.
§ 207(a)(1). In addressing issues of statutory construction, we
are “mindful of the directive that [the statute] is to be liberally
construed to apply to the furthest reaches consistent with Con-
gressional direction.” Klem v. Cnty. of Santa Clara, 208 F.3d
1085, 1089 (9th Cir. 2000) (quotation marks omitted). “FLSA
exemptions are to be ‘narrowly construed against . . . employ-
ers’ and are to be withheld except as to persons ‘plainly and
unmistakably within their terms and spirit.’ ” Auer v. Robbins,
SOLIS v. STATE OF WASHINGTON DSHS 17179
519 U.S. 452, 462 (1997) (quoting Arnold v. Ben Kanowsky,
Inc., 361 U.S. 388, 392 (1960)). “An employer who claims an
exemption from the FLSA bears the burden of demonstrating
that such an exemption applies.” Klem, 208 F.3d at 1089.
“The criteria provided by regulations are absolute and the
employer must prove that any particular employee meets
every requirement before the employee will be deprived of
the protection of the Act.” Bothell v. Phase Metrics, Inc., 299
F.3d 1120, 1125 (9th Cir. 2002) (quoting Mitchell v. Williams,
420 F.2d 67, 69 (8th Cir. 1969) (quotation marks omitted).
[2] The FLSA includes an exemption from the overtime
requirement for “any employee employed in a bona fide exec-
utive, administrative, or professional capacity . . . .” 29 U.S.C.
§ 213(a)(1). Under DOL regulations, the term “employee
employed in a bona fide professional capacity” means an
employee whose primary duties require “knowledge of an
advanced type in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual
instruction.” 29 C.F.R. § 541.300(a)(2)(I). The section enti-
tled “Learned Professionals” provides that:
(a) To qualify for the learned professional exemp-
tion, an employee’s primary duty must be the perfor-
mance of work requiring advanced knowledge in a
field of science or learning customarily acquired by
a prolonged course of specialized intellectual
instruction. This primary duty test includes three ele-
ments:
(1) The employee must perform work requiring
advanced knowledge;
(2) The advanced knowledge must be in a field of
science or learning; and
(3) The advanced knowledge must be customarily
acquired by a prolonged course of specialized intel-
lectual instruction.
17180 SOLIS v. STATE OF WASHINGTON DSHS
29 C.F.R. § 541.301 (“learned professional exemption”).2
The regulations include further detail about the third ele-
ment of this exemption:
The phrase “customarily acquired by a prolonged
course of specialized intellectual instruction”
restricts the exemption to professions where special-
ized academic training is a standard prerequisite for
entrance into the profession. The best prima facie
evidence that an employee meets this requirement is
possession of the appropriate academic degree. . . .
[T]he learned professional exemption is not available
for occupations that customarily may be performed
with only the general knowledge acquired by an aca-
demic degree in any field, with knowledge acquired
through an apprenticeship, or with training in the
performance of routine mental, manual, mechanical
or physical processes. The learned professional
exemption also does not apply to occupations in
which most employees have acquired their skill by
experience rather than by advanced specialized intel-
lectual instruction.
29 C.F.R. § 541.301(d).
[3] While we have not addressed this provision previously,
our sister circuits have concluded that positions that do not
require a particular course of intellectual instruction directly
related to the employee’s professional duties do not come
within the “learned professional” exemption, even if they also
require substantial practical experience. In Dybach v. State of
Florida Department of Corrections, 942 F.2d 1562 (11th Cir.
1991), the court held that probation officers, who were
required to have a bachelor’s degree in any field, including
2
The Secretary has conceded that social workers meet the first two ele-
ments of the “learned professional” exemption.
SOLIS v. STATE OF WASHINGTON DSHS 17181
“nuclear physics” or “basketweaving,” id. at 1565-66, did not
qualify for the “learned professional” exemption despite a
requirement of one year of prior experience in law enforce-
ment or corrections. In Fife v. Harmon, 171 F.3d 1173 (8th
Cir. 1999), the Eighth Circuit considered the application of
the exemption to aviation operation specialists, who were
required to have either a bachelor’s degree in aviation man-
agement or a directly related field, or four years of full-time
experience in aviation administration, or some combination of
the two. The court concluded the “learned professional”
exemption did not apply because the employees acquired their
advanced knowledge “from a general academic education or
from an apprenticeship” and not from a “prolonged course of
specialized study,” id. at 1177. In Vela v. City of Houston, 276
F.3d 659 (5th Cir. 2001), the court held that emergency medi-
cal technicians and paramedics, who were required to com-
plete 200 to 880 hours of didactic training, clinical
experience, and field internship, did not satisfy the education
prong of the “learned professional” exemption. Id. at 676.
[4] In contrast, in situations in which applicants are
required to complete a particular course of instruction directly
related to a position, even if they do not have a specific
degree, courts have concluded that the “learned professional”
exemption is applicable. In Owsley v. San Antonio Indepen-
dent School District, 187 F.3d 521 (5th Cir. 1999), the court
concluded that state-licensed athletic trainers were exempt
even though applicants could qualify with a bachelor’s degree
in any field. To obtain a license, trainers also had to complete
courses in the specific areas of “(a) human anatomy; (b)
health, disease, nutrition, fitness, wellness, or drug and alco-
hol education; (c) kinesiology; (d) human physiology or phys-
iology of exercise; and (e) athletic training.” The court
concluded that “the brevity of the trainer’s course of special-
ized study [did] not preclude its inclusion under the “learned”
prong.” Id. at 524. The court distinguished Dybach on the
basis that the trainers were required to “take a specified num-
17182 SOLIS v. STATE OF WASHINGTON DSHS
ber of specialized courses directly related to their professional
duties.” Id. at 525.3
Other circuit courts have reached similar conclusions. In
Rutlin v. Prime Succession, Inc., 220 F.3d 737 (6th Cir.
2000), the Sixth Circuit determined that a licensed funeral
director was a “learned professional” despite the absence of
a college degree requirement because licensing required a
specific course of study including completion of one year of
mortuary instruction and two years of college, with classes in
chemistry and psychology and a passing grade on national
board tests in embalming, pathology, anatomy, and cosmetol-
ogy. The court concluded that a funeral director was required
to “complete a specialized course of instruction directly relat-
ing to his primary duty of embalming human remains.” Id. at
742. In Reich v. Wyoming, 993 F.2d 739 (10th Cir. 1993),
game wardens required to have a bachelor’s degree in wildlife
management, wildlife biology, or a closely related field, as
well as basic law enforcement training, were found to be
“learned professionals.” The court concluded that the curric-
ula for such degrees contain an “emphasis on biology, zool-
ogy, botany, and other physical sciences,” id. at 741, which
provides requisite knowledge of the tasks associated with
wildlife management, id. at 743.
[5] Read together, these authorities are consistent with the
two opinion letters the DOL has issued with respect to social
workers. The DOL’s interpretation of its own regulations gen-
erally is accorded controlling deference “unless plainly erro-
neous or inconsistent with the regulation.” Auer, 519 U.S. at
461 (quotation marks omitted) (granting deference to DOL
interpretation of FLSA regulations articulated in an amicus
curiae brief). In 2001, the DOL published an opinion letter
3
Owsley in turn was distinguished by Vela, in which the court concluded
that the EMT/paramedic education requirements at issue there were “much
less rigorous” than required for the trainers in Owsley. Vela, 276 F.3d at
676.
SOLIS v. STATE OF WASHINGTON DSHS 17183
entitled “Social Caseworkers/Professional Exemptions,”
addressing “whether the educational requirements for [certain
social caseworker positions] satisfy the ‘advanced learning
requirement for the professional exemption . . . .’ ”, 2001 WL
1558756 (“2001 Letter”). The caseworkers in question were
found to meet the educational criteria for the “learned profes-
sional” exemption because the employer required “a master’s
degree in social work or human services, or a bachelor’s
degree in human behavioral science,” as well as with speci-
fied work experience. Id. Importantly, the letter detailed the
course of academic study needed to meet the position’s
degree requirement:
To meet the human behavioral science degree
requirement the employee must have at least 30
semester hours or 45 quarter hours either in develop-
ment of human behavior, child development, family
intervention techniques, diagnostic measures of ther-
apeutic techniques such as social work, psychology,
sociology, guidance and counseling, and child devel-
opment.
Id.4 While it is doubtful that the grammatical structure of this
4
Unfortunately, this sentence uses an “either” without an “or,” and it
fails to clarify the relationship between the items listed following the
“such as” with the items listed earlier. The sentence likely was intended
to read as follows:
To meet the human behavioral science degree requirement the
employee must have at least 30 semester hours or 45 quarter
hours either in development of human behavior, child develop-
ment, family intervention techniques, diagnostic measures [or]
therapeutic techniques[,] such as social work, psychology, sociol-
ogy, guidance and counseling, and child development.
Such a construction would indicate that applicants may count classes in
fields such as social work, psychology, sociology, guidance and counsel-
ing, and child development, but only to the extent that such courses focus
on areas of development of human behavior, child development, family
intervention techniques, diagnostic measures, or therapeutic techniques.
17184 SOLIS v. STATE OF WASHINGTON DSHS
excerpt would satisfy the rigorous standards of Justice Scalia
and Professor Garner, see generally Antonin Scalia & Bryan
A. Garner, Making Your Case: The Art of Persuading Judges
(2008), nonetheless it is clear that caseworkers must hold a
degree in a specific area of behavioral science and that their
coursework must focus on developmental and therapeutic
knowledge directly related to their duties.
In a 2005 opinion letter, the DOL addressed the application
of the “learned professional” exemption to a different group
of social workers and caseworkers. The letter distinguished
social worker positions that required “a master’s degree in
social work, drug and alcohol, education, counseling, psy-
chology, or criminal justice,” from caseworker positions that
required only “a bachelor’s degree in social sciences.” (“2005
Letter”) 2005 WL 3308621. The DOL concluded that the
criteria for the social worker position “require[d] advanced
knowledge in a ‘field of science or learning,’ ” and that such
workers would qualify for the exemption as long as they
“work[ed] in the field of their degree.” On the other hand, the
caseworker position did not qualify for the exemption because
“[t]he course of study for a bachelor’s degree in ‘social sci-
ences’ does not constitute the ‘specialized’ academic training
necessary to qualify an occupation for the learned profes-
sional exemption.” Id.
[6] The education requirements for the social workers at
issue in this case fall between those applicable to the employ-
ees whose positions were analyzed in the two letters. The dis-
trict court observed correctly that the requirement of a degree
in “social services, human services, behavioral sciences or an
allied field,” is more specific than the requirement of a degree
in “social sciences.” For example, degrees in social sciences
such as political science or economics generally would not
satisfy the DSHS requirements. However, it also is clear that
DSHS’s requirements are less specific than the combination
described in the 2001 Letter of a degree in “behavioral sci-
ences” with a particular course of study in developmental and
SOLIS v. STATE OF WASHINGTON DSHS 17185
therapeutic techniques. The dispositive question here is not
whether DSHS requires more than a degree “in any field,” but
whether it requires a “prolonged course of specialized intel-
lectual study.”
[7] Relying upon Chatfield, the district court concluded
that DSHS’s requirement of a degree in “human services,
behavioral sciences or an allied field” was sufficient to show
that “applicants [must] hold a specialized degree in a field
related to the work they will perform.” However, even assum-
ing that Chatfield was correctly decided, there is no indication
that the record in that case contained evidence similar to the
DSHS “cheat sheet.” It is clear from that document that the
degree requirements for social worker positions do not
“plainly and unmistakably” include a specialized course of
study directly related to the positions.5
The social workers discussed in the 2001 opinion letter
were required to complete a specific course of study, and a
certain number of courses had to be focused on developmen-
tal or therapeutic knowledge directly related to the position of
a social worker. While the requirements in the “cheat sheet”
appear at first glance to have a similar limiting function, on
closer examination they have the opposite effect, opening the
social worker position to applicants whose degree and course-
work may bear little relation to the actual duties of social
workers. According to the “cheat sheet,” a degree in
5
Chatfield distinguished “social sciences” from “social work, human
services, and related fields,” because “social sciences included sociology,
psychology, anthropology, economics, political science and history,” as
opposed to degrees in fields related to the child services position at issue.
556 F. Supp. 2d at 536-37, However, the degree requirements in this case
may be satisfied by a degree in several of the broad categories identified
as social science—sociology, psychology, and anthropology—as well as
in other disciplines whose connection to social work is tenuous, such as
education and therapeutic recreation.
17186 SOLIS v. STATE OF WASHINGTON DSHS
Counseling, Psych[ology], Social Work, Human Ser-
vices, Sociology, Child Development, Family
Studies, Pastoral Counseling, Anthropology, Geron-
tology, Therapeutic Recreation, Education, Thera-
peutic Fields, [or] Criminal Justice,
is sufficient to meet the requirement, and no further examina-
tion into the coursework taken in those fields is undertaken.
Particular coursework is examined only if the applicant has a
degree in a “social science” not on the list of those acceptable.
Such fields include:
History, Economics, Civics, Philosophy, Communi-
cations, Archeology, Nursing, Theology, Pastoral
Studies, Religion, Recreation, Women’s Studies,
Native American Studies, Public Administration,
Political Science, Law & Justice, Human Resources,
Leisure Studies, Physical Education, Law Enforce-
ment, Liberal Arts.
Applicants with a degree in one of these disciplines still
may meet the requirements of the social worker position as
long as they have the specified number of credit hours in any
of the acceptable fields—without respect to the content of that
coursework. As a result, an applicant with a degree in anthro-
pology whose coursework focused on physical anthropology
would meet the educational requirements for the position, as
would an archeology major who took sufficient courses in
anthropology. Likewise, an applicant with a sociology degree
could meet the requirements without any focus on the thera-
peutic aspects of sociology, as would an applicant with a
women’s studies or religious studies degree who had suffi-
cient coursework in sociology, with a degree in leisure studies
with sufficient coursework in education or therapeutic recre-
ation, or with a pre-law degree with coursework in criminal
justice.
[8] Whether a position requires a degree in a specialized
area, see Reich, 993 F.2d at 739, or merely a specific course
SOLIS v. STATE OF WASHINGTON DSHS 17187
of study, see Rutlin, 220 F.3d at 737, a “prolonged course of
specialized intellectual instruction” must be sufficiently spe-
cialized and relate directly to the position. An educational
requirement that may be satisfied by degrees in fields as
diverse as anthropology, education, criminal justice, and ger-
ontology does not call for a “course of specialized intellectual
instruction.” Moreover, in this case the net is cast even wider
by the acceptance of applicants with other degrees as long as
they have sufficient coursework in any of these fields.
[9] DSHS nonetheless contends that it has presented evi-
dence that each of the acceptable degrees relates to the duties
of its social workers. However, while social workers no doubt
have diverse jobs that benefit from a multi-disciplinary back-
ground,6 the “learned professional” exemption applies to posi-
tions that require “a prolonged course of specialized
intellectual instruction,” not positions that draw from many
varied fields. While particular coursework in each of the
acceptable fields may be related to social work, DSHS admits
that it does not examine an applicant’s coursework once it
determines that the applicant’s degree is within one of those
fields. For the “learned professional” exemption to apply, the
knowledge required to perform the duties of a position must
come from “advanced specialized intellectual instruction”
rather than practical experience. 29 C.F.R. § 541.301(d). The
requirement of a degree or sufficient coursework in any of
several fields broadly related to a position suggests that only
general academic training is necessary, with the employer
relying upon apprenticeship and experience to develop the
advanced skills necessary for effective performance as a
social worker.
The district court also gave weight to the six-week formal
training program required for accepted applicants. However,
6
For example, there are obvious practical applications of a background
in cultural anthropology or gerontology for social workers who serve
diverse populations.
17188 SOLIS v. STATE OF WASHINGTON DSHS
such a program was determined to be insufficient in Vela,
where the court concluded that 880 hours of specialized train-
ing in didactic courses, clinical experience, and field intern-
ship did not satisfy the education prong of the “learned
professional” exemption. 276 F.3d at 659. If six weeks of
additional training, only four weeks of which is in the class-
room, were sufficient to qualify as a specialized course of
intellectual instruction, nearly every position with a formal
training program would qualify.
[10] The district court concluded that the requirement of
eighteen months of experience in social work was another
factor weighing in favor of a determination of specialized
instruction. However, the regulation states clearly that the
exemption does not apply to “occupations in which most
employees have acquired their skill by experience.” 29 C.F.R.
§ 541.301(d). Owsley, upon which the district court relied, is
not to the contrary, as the position at issue in that case
included a requirement of specific academic courses as well
as the apprenticeship requirement. 187 F.3d at 521. Indeed,
Owsley distinguished Dybach on this exact point. Id. at 525.
[11] As noted previously, FSLA exemptions are construed
narrowly against employers and “are to be withheld except as
to persons plainly and unmistakably within their terms and
spirit,” Klem, 208 F.3d at 1089, and the employer has the bur-
den of showing that a particular exemption applies, Bothell,
299 F.3d at 1124. We conclude that DSHS has not met its
burden of showing that its social workers come within the
“learned professional” exemption, and that the district court
should not have granted summary judgment in its favor.7
7
DSHS argues belatedly that requiring it to comply with the FLSA vio-
lates the Tenth Amendment and impinges on state sovereignty. Although
DSHS did plead the defense of sovereign immunity in its amended
answer, it never litigated the issue before the district court. Accordingly,
we decline to review the issue until it has been argued in the court below.
See Berry v. County of Sonoma, 30 F.3d 1174, 1186 (9th Cir. 1994)
(declining to review county’s argument that application of the FLSA to the
county violates the Tenth Amendment because it was raised for the first
time on appeal).
SOLIS v. STATE OF WASHINGTON DSHS 17189
REVERSED.