Solis v. Washington

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.