WAIVER

"This Court has "repeatedly held that 'an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.'

...The reason for this prohibition is plain:

as a court of appeals, we review claims of judicial error in the trial courts. If we were to regularly address questions — particularly fact-bound issues — that districts court never had a chance to examine, we would not only waste our resources, but also deviate from the essential nature, purpose, and competence of an appellate court.

Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness. For purposes of this section, "substantial hardship" means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. For purposes of this section, "principles of fairness" are violated when the literal application of a Rule affects a particular person in a manner significantly different from the way i[t] affects other similarly situated persons who are subject to the Rule.

"[To prove willfulness], the employee must prove by a preponderance of the evidence that his employer either knew that its conduct was prohibited by the [EPA] or showed reckless disregard about whether it was."

Subject matter jurisdiction cannot be created by waiver, acquiescence or agreement of the parties, or by error or inadvertence of the parties or their counsel, or by the exercise of power by the court; it is a power that arises solely by virtue of law.

When a court lacks subject matter jurisdiction, its judgment is void and must be reversed on appeal.