Burke v. Commissioner of Social Security Administration ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sundance Burke, as surviving spouse and No. CV-22-01626-PHX-DGC substitute party for Kay Lynn Burke, 10 ORDER Plaintiff, 11 v. 12 Commissioner of Social Security 13 Administration, 14 Defendant. 15 16 Plaintiff Kay Lynn Burke, through her husband Sundance Burke, seeks judicial 17 review of the final decision of the Commissioner of Social Security which denied her claim 18 for surviving divorced spouse insurance benefits under § 402(e) of the Social Security Act. 19 For reasons stated below, the Court will affirm the decision. 20 I. Background. 21 Plaintiff Kay Lynn Burke married Joseph Davis in December 1978. Tr. 16, 54. She 22 and Mr. Davis divorced in November 1989, over ten years later. Tr. 16, 54. Plaintiff 23 applied for disability insurance benefits in 1994 and was found disabled and entitled to 24 benefits in 1995. Tr. 16, 120. In July 2004, at age 57, Plaintiff married Sundance Burke. 25 Tr. 16. Her former husband, Mr. Davis, died in September 2017. Tr. 16. Plaintiff and Mr. 26 Burke remained married until she died in February 2022, after which Mr. Burke became 27 the substitute party in this case. Tr. 148-49. The Court will use “Plaintiff” throughout this 28 order to refer to Kay Lynn Burke. 1 The Social Security Act (the “Act”) provides that widows and divorcees of deceased 2 insured persons may in certain situations receive a portion of the deceased person’s social 3 security benefits. 42 U.S.C. § 402(e). Plaintiff, as the surviving divorced wife of Mr. 4 Davis, applied for these benefits on May 5, 2018, at the age of 71. Tr. 56-60. The Social 5 Security Administration (“SSA”) denied the claim (Tr. 61-63), and Plaintiff filed a request 6 for reconsideration which was denied on July 30, 2018. Tr. 64-67. Plaintiff filed a request 7 for a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held on 8 December 12, 2019. Tr. 19-50. The ALJ denied Plaintiff’s request for benefits on June 3, 9 2020 (Tr. 9-17), and this decision became final when the Appeals Council denied review 10 (see Tr. 1-5). 11 Plaintiff brought this action for judicial review in September 2022. Doc. 1. The 12 parties briefed the issues after receipt of the certified administrative transcript. 13 Docs. 20, 24, 29. The Court heard oral argument on November 29, 2023. 14 II. Standard of Review. 15 The Court reviews only those issues raised by the party challenging the ALJ’s 16 decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may reverse 17 the decision if it is based on legal error or is not supported by substantial evidence. 18 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 19 The Commissioner’s interpretation of social security statutes or regulations is 20 entitled to deference. See Campbell ex rel. Campbell v. Apfel, 177 F.3d 890, 893 (9th 21 Cir. 1999) (regulation and statute); Jamerson v. Chater, 112 F.3d 1064, 1066 (9th 22 Cir. 1997) (statute); Esselstrom v. Chater, 67 F.3d 869, 872 (9th Cir. 1995) (regulations). 23 “Before deferring to agency interpretation,” however, a court must “independently 24 examine the text and context of the statute.” Larson v. Saul, 967 F.3d 914, 922 (9th Cir. 25 2020). If the statute is unambiguous, the court does not defer to the agency’s interpretation. 26 Id. A court need not accept an agency’s interpretation of its own regulations if that 27 interpretation is inconsistent with the wording of the regulations or the statute under which 28 the regulations were promulgated. Esselstrom, 67 F.3d at 872. 1 III. Discussion. 2 A. Relevant Portions of the Act and the Issue in This Case. 3 Section 402 of the Act identifies various classes of persons entitled to social security 4 benefits. Subsection 402(e), titled “Widow’s insurance benefits,” extends certain benefits 5 to widows and surviving divorced spouses of individuals who died fully insured under the 6 Act. 42 U.S.C. § 402(e). A “surviving divorced wife” – the relevant category for purposes 7 of this case – is defined as a woman divorced from a husband who has died, provided she 8 was married to him for a period of 10 years immediately before the divorce. 42 U.S.C. 9 § 416(d)(2). 10 To qualify for benefits as a surviving divorced wife under § 402(e), a woman must 11 show that she: (A) is unmarried, (B) meets certain age and disability requirements, (C) has 12 applied for the insurance benefits, and (D) is not entitled to old-age benefits exceeding half 13 the value of her potential benefits under § 402(e). See § 402(e)(1)(A)-(D). The Court will 14 refer to these as the “general requirements” for benefits under § 402(e). 15 Plaintiff cannot satisfy the first of these general requirements because she was not 16 unmarried when she applied for benefits in 2018 – she had married Mr. Burke in 2004 and 17 remained married to him. This fact is not necessarily disqualifying, however, because 18 paragraph 402(e)(3) of the Act creates three specific exceptions to the requirement that 19 Plaintiff be unmarried. The three exceptions are identified by the bolded brackets the Court 20 inserts into the following statutory language from subsection 402(e): 21 (3) For purposes of paragraph (1), if -- 22 (A) [1] a widow or surviving divorced wife marries after attaining 60 (or [2] 23 after attaining age 50 if she was entitled before such marriage occurred to benefits based on disability under this subsection), or 24 25 (B) [3] a disabled widow or disabled surviving divorced wife described in paragraph (1)(B)(ii) marries after attaining age 50. 26 Such marriage shall be deemed not to have occurred. 27 28 42 U.S.C. § 402(e)(3). 1 So, if Plaintiff satisfied any of the three criteria in paragraph 402(e)(3), her marriage 2 to Mr. Burke is deemed not to have occurred and she could receive surviving divorced 3 spouse benefits under subsection 402(e) if she satisfies the other general requirements of 4 the subsection. The parties do not dispute that Plaintiff satisfies the other general 5 requirements. 6 This case therefore focuses on the exceptions set out in paragraph 402(e)(3), but it 7 is even narrower than that. Plaintiff’s counsel agreed at oral argument that Plaintiff does 8 not satisfy the first part of paragraph 402(e)(3)(A) – identified in the language quoted above 9 as exception [1] – because she did not marry Mr. Burke after she was 60. They married 10 when she was 57. Plaintiff’s counsel also agreed that Plaintiff does not satisfy the 11 exception in paragraph 402(e)(3)(B) – identified above as exception [3] – because that 12 exception incorporates paragraph 402(e)(1)(B)(ii), which requires applicants to be between 13 the ages of 50 and 60 when they apply for benefits. See 42 U.S.C. § 402(e)(1)(B)(ii); 20 14 C.F.R. § 404.336(e)(3). Plaintiff applied at age 71. Thus, the only issue in this case is 15 whether Plaintiff satisfies the exception in the parenthetical of paragraph 402(e)(3)(A) – 16 identified above as exception [2] – which requires that she married after age 50 and “was 17 entitled before such marriage occurred to benefits based on disability under this 18 subsection.” 42 U.S.C. § 402(e)(3)(A). Everyone agrees Plaintiff married after age 50, so 19 the focus in this case is on whether she “was entitled before such marriage occurred to 20 benefits based on disability under this subsection.” Id. 21 Plaintiff claims that she satisfies this requirement because she was disabled and 22 receiving disability benefits before she married Mr. Burke. Defendant contends that the 23 requirement is more specific: It is not enough that Plaintiff was disabled and receiving 24 social security disability benefits before her second marriage; the language of the 25 parenthetical states that she must have been entitled before the marriage to disability 26 benefits “under this subsection.” Defendant reads these words to mean “under subsection 27 402(e)” – that is, Plaintiff must have been entitled to surviving divorced spouse benefits 28 based on disability under subsection 402(e) before she married Mr. Burke. Defendant notes 1 that Plaintiff could not have been entitled to such benefits when she remarried in 2004 2 because her former spouse, Mr. Davis, was still alive. He did not die until 2017. Plaintiff 3 therefore was not a “surviving divorced wife” when she married Mr. Burke and, even if 4 disabled, was not entitled to “surviving divorced wife” benefits under § 402(e). 5 This presents a question of statutory interpretation. The Court must decide which 6 reading of the parenthetical is correct. The Court will, as always on a question of statutory 7 interpretation, look first to the language of the Act. The Court will then look, if necessary, 8 to regulations promulgated by SSA and the legislative history and purpose of the Act. 9 B. Statutory Language. 10 Plaintiff argues that the words “under this subsection” in the parenthetical constitute 11 a cross-reference to § 423 of the Act, which describes when people are considered disabled 12 and entitled to disability benefits. Doc. 29 at 4-5. Because she was disabled and entitled 13 to disability benefits as of 1995, and did not marry Mr. Burke until 2004, Plaintiff claims 14 that she “was entitled before such marriage occurred to benefits based on disability under 15 this subsection.” 42 U.S.C. § 402(e)(3)(A). Plaintiff notes that other portions of § 402(e) 16 cite to § 423 when discussing disability benefits, and argues that paragraph 402(e)(3)(A) is 17 meant to extend benefits to all former spouses who are disabled at the time of their 18 remarriage. Doc. 29 at 4-5. For several reasons, the Court does not agree.1 19 First, the Court cannot agree that the words “under this subsection” mean “under 20 section 423.” The words refer to a specific subsection – “this subsection” – which clearly 21 means the subsection in which the words are found – subsection 402(e). This reading is 22 confirmed by the fact that “subsection” is used throughout § 402 to refer to lowercase letter 23 subsections. See § 402(a)(3) (referring to “subsection (q) and subsection (w)”); § 402(b)(1) 24 (“subsection (s)”); § 402(c)(3)(a) (subsections (b), (e), (g), and (h)); and (f)(1)(C)(ii)(II) 25 (“subsection (a)”); see also Allen v. Berryhill, No. 1:17-CV-00239-DAD-JDP, 2019 WL 26 415034 (E.D. Cal. Feb. 1, 2019), aff’d sub nom. Allen v. Kijakazi, 35 F.4th 752 (9th Cir. 27 28 1 Plaintiff’s brief makes other arguments about the “same subject canon” and verb tenses that the Court does not understand. Doc. 29 at 4-6. They are not persuasive. 1 2022) (referring to “subsection (x)” of § 402); Goldstein v. Berryhill, No. 5:13-CV-03504- 2 HRL, 2018 WL 2430877 (N.D. Cal. May 30, 2018), aff’d, No. 18-16260, 2019 WL 3 3023565 (9th Cir. Jan. 24, 2019) (referring to “subsection (q)” of § 402). It follows that 4 the words “this subsection” refer to subsection 402(e). 5 Second, there are several references to § 423 within § 402, and in each of these the 6 Act specifically names § 423. See, e.g., 42 U.S.C. § 402(d)(1)(B) (referencing § 423 for 7 the purposes of defining disability in child’s insurance benefits), § 402(t)(1) (disallowing 8 benefits under § 423 to certain non-citizens); § 402(e)(1)(B)(ii) (referring to § 423(d) for 9 the purposes of defining what it means to be “under a disability”). Section 423 is not named 10 in the parenthetical as issue in this case, and Plaintiff points to no other provision in § 402 11 where the statute refers to § 423 simply as a “subsection” or without identifying it 12 explicitly. 13 Third, to give § 402(e)(3)(A) Plaintiff’s meaning would be to render the words 14 “under this subsection” superfluous. Because “disability” in subsection 402(e) is 15 specifically defined to have the meaning found in § 423(d) (see § 402(e)(1)(B)(ii)), the 16 wording of the parenthetical – “based on disability under this subsection” – would be a 17 redundancy if “under this subsection” also referred to § 423. It would essentially say 18 “based on a § 423 disability under § 423.” The Court must “give effect, if possible, to 19 every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001). The 20 Court will not adopt an interpretation that renders the phrase “under this subsection” 21 superfluous. The more reasonable reading is to give these words their plain meaning – 22 “under this subsection” means “under subsection 402(e).” 23 Plaintiff’s counsel made an additional argument during the hearing. He asserted 24 that the word “entitled” in the parenthetical – that “she was entitled before such marriage 25 occurred to benefits based on disability under this subsection” – does not mean presently 26 entitled. Plaintiff’s counsel noted that it would not be incorrect to say that his wife is 27 “entitled” to benefits under his life insurance policy even though he has not died, because 28 the insurance policy has been purchased and paid for and she will receive the benefits when 1 he dies. Similarly, he argued, Plaintiff – who admittedly was disabled – would be entitled 2 to surviving divorced spouse benefits when Mr. Davis died, and therefore could be said in 3 2004 to be “entitled” to such benefits within the meaning of the parenthetical even though 4 Mr. Davis did not die for another 13 years. 5 While this may be an acceptable use of the word “entitled” in general conversation, 6 the Court cannot agree that it is what the statute means. Subsection 402(e) itself sets forth 7 the requirements for when an applicant is “entitled” to surviving divorced spouse benefits. 8 As already noted, the subsection contains four general requirements. See 42 U.S.C. 9 § 402(e)(1)(A)-(D). It then states that a person who satisfies these requirements “shall be 10 entitled to a widow’s insurance benefit[.]” Id. (emphasis added). The word “entitled” thus 11 has a specific meaning in subsection 402(e), of which the parenthetical is a part. 12 Significantly, the four general requirements apply only to a widow or a “surviving divorced 13 wife (as defined in section 416(d) of this title).” Id. § 402(e)(1). Section 416(d) defines 14 “surviving divorced wife” as “a woman divorced from an individual who has died[.]” 42 15 U.S.C. § 416(d) (emphasis added). Because Mr. Davis had not died before Plaintiff 16 remarried, she was not a “surviving divorced wife” within the meaning of subsection 17 402(e) when she married, and, by the express terms of that subsection, was not “entitled” 18 to its benefits. 19 The Court finds that the statutory language at issue in this case is clear. To qualify 20 for the exception to the requirement that she be unmarried when she applied for benefits 21 (§ 402(e)(1)(A)), Plaintiff must have been entitled to benefits under “this subsection” – 22 subsection 402(e) – before she married Mr. Burke in 2004 (§ 402(e)(3)(A)). She was not 23 so entitled. Mr. Davis had not died in 2004, and Plaintiff therefore was not a surviving 24 divorced wife within the meaning of § 402(e) and entitled to benefits under that subsection, 25 as required by the parenthetical. Plaintiff therefore is not deemed unmarried by § 402(e)(3) 26 and cannot satisfy the general requirement in § 402(e)(1)(A) that she be unmarried to 27 receive surviving divorced wife benefits. Under the plain language of the statute, Plaintiff 28 1 does not qualify for the benefits. Those benefits therefore cannot be recovered by her 2 Plaintiff-husband, Mr. Burke. 3 C. Relevant Regulations. 4 Because the language of the statute is clear, the Court need not defer to SSA’s 5 regulatory interpretation of the Act. The Court notes, however, that SSA reads the statute 6 the same way as the Court. The three paragraphs of the regulation interpreting 7 § 402(e)(3)(A) and (B) correspond to the three exceptions identified above by the three 8 brackets in the statutory language, and describe individuals eligible for § 402(e)(3)’s three 9 exceptions to the “unmarried” requirement: 10 1. You remarried after you became 60 years old. 11 2. You are now age 60 or older and you meet both of the conditions in 12 paragraphs (e)(2)(i) and (ii) of this section: 13 i. You remarried after attaining age 50 but before attaining age 60. ii. At the time of the remarriage, you were entitled to widow’s or 14 widower’s benefits as a disabled widow or widower. 15 3. You are now at least age 50 but not yet age 60 and you meet both of the 16 conditions in paragraphs (e)(3)(i) and (ii) of this section: i. You remarried after attaining age 50. 17 ii. You met the disability requirements in paragraph (c) of this section at 18 the time of your remarriage (i.e., your disability began within the specified time and before your remarriage). 19 20 20 C.F.R. § 404.336(e) (emphasis added).2 21 The italicized language in part 2 of this regulation corresponds to the parenthetical 22 in § 402(e)(3)(A) – exception [2] in the statutory language quoted above – and makes clear 23 that persons who remarry between ages 50 and 60, like Plaintiff, are eligible for benefits 24 not simply by being entitled to general disability benefits under § 423 before they are 25 married, but by being entitled to “widow’s or widower’s benefits as a disabled widow or 26 27 2 The regulations refer only to widows and widowers, but § 402(e) also applies to 28 surviving divorced spouses and the regulations provide no different qualifications they must meet. 1 widower.” Id. In other words, applicants must be entitled to benefits under § 402(e) before 2 remarrying. This agrees with the Court’s reading of the parenthetical. 3 D. Legislative History of § 402(e). 4 The clear language of the Act also eliminates the need to consult legislative history. 5 The Court notes, nonetheless, that the history supports the Court’s reading of the 6 parenthetical. Defendant notes that Congress amended the Act in 1983 to ensure that 7 surviving divorced spouses already receiving benefits on their deceased ex-spouses’ 8 records would not lose those benefits if they married before 60. Doc. 24 at 10-11. 9 Defendant points to § 131 of the House report for the Social Security Amendments of 1983, 10 which reads: “Your Committee’s bill provided that the social security benefits of a disabled 11 widow(er) or a divorced disabled widow(er) would not terminate if the beneficiary 12 remarried before age 60.” H.R. Rep. No. 98-25(I) at 251-52, 1983 WL 25297, at *33 (Mar. 13 24, 1983). This intent – to prevent qualifying surviving divorced spouses from losing their 14 benefits upon remarriage before age 60 – is consistent with the Court’s reading of the 15 parenthetical. As construed in this order, the parenthetical applies to spouses who, before 16 their remarriage, are “entitled” to surviving spouse benefits under § 402(e). The 17 parenthetical provides that they do not lose those benefits by remarrying, as intended by 18 Congress. 19 E. Plaintiff’s Cases. 20 Plaintiff relies on two district court cases to support her position. The Court does 21 not find either case persuasive. 22 1. Pirus v. Bowen. 23 Plaintiff relies on Pirus v. Bowen, No. CV87-1141-IH, 1987 WL 156204 at *2 (C.D. 24 Cal. Nov. 19, 1987). The divorced plaintiff in Pirus had remarried, and sought to be 25 deemed unmarried and therefore qualified for surviving divorced wife benefits under the 26 first part of § 402(e)(3)(A) – the part identified as exception [1] in the language quoted 27 above. That provision states that a person will be deemed unmarried if she marries after 28 age 60, which the plaintiff did. The plaintiff represented a class of similarly situated 1 individuals. The plaintiff’s efforts to obtain benefits were blocked by SSA regulations 2 applying § 402(e)(3), which at the time included a subpart (e)(4) stating that a divorced 3 spouse was not entitled to benefits if she remarried before her former spouse died. Even 4 though § 402(e)(3)(A) suggested that all surviving divorced wives who remarried after age 5 60 would be deemed unmarried, this regulatory language stated that those who had 6 remarried before the death of their former spouse would be ineligible. 7 The plaintiff claimed that subpart (e)(4) for the regulation was inconsistent with the 8 statutory language of § 402(e)(3)(A) and therefore unenforceable. Id. The district court 9 agreed, finding that “the regulation embodied a ‘forced statutory construction,’ which 10 could not be reconciled with plaintiffs’ facial entitlement under the plain terms of the 11 section.” Pirus v. Bowen, 869 F.2d 536, 539 (9th Cir. 1989).3 The district court further 12 noted that the legislative history of the Act revealed an intent on the part of Congress to 13 extend benefits to elderly claimants without a penalty for remarriage. Id. 14 In response to the Pirus decision, the SSA removed subpart (e)(4) from the 15 regulations. That subpart is not found in the regulations today. 16 Plaintiff relies on this modification of the regulations to argue that the parenthetical 17 at issue in this case – also found in § 402(e)(3)(A) of the Act – cannot be read to require 18 that her former husband was dead before she remarried. Docs. 20 at 10-14; 29 at 9. The 19 Court is not persuaded by this argument. The SSA’s removal of paragraph (e)(4) from the 20 regulations, in response to the Pirus decision, did nothing to change the meaning of the 21 statutory language discussed above. And the district court in Pirus did not purport to 22 construe that statutory language – it addressed the language before the parenthetical in 23 § 402(e)(3)(A), which sets forth a different exception to the “unmarried” requirement. The 24 district court found the (e)(4) regulation at odds with the plain language of that different 25 3 The order issued by the district court in Pirus does not explain the court’s 26 reasoning. The order instead notes that a transcript of the court’s August 3 and 6, 1987 hearings would show the court’s rationale. Pirus, 1987 WL 156204, at *1. The transcript 27 is no longer accessible, but the Ninth Circuit outlined the reasoning of the district court in its opinion affirming the attorneys’ fees award made by the district court. See Pirus, 869 28 F.2d at 540. This Court therefore cites to the Ninth Circuit decision for a description of what the district court did. 1 exception, reasoning that Congress meant to include those who remarried after 60 in the 2 group of persons eligible for widow’s benefits. Pirus, 869 F.2d at 540 (“Had Congress 3 intended to exclude the Pirus class, the court reasoned, Congress most probably would have 4 included language to that effect[.]”). 5 Pirus does not control this case. The parenthetical at issue in this case is clear. As 6 explained above, it applies only to those who were entitled to surviving divorced spouse 7 disability benefits under § 402(e) before they remarried. Plaintiff was not so entitled 8 because she was not a surviving divorced spouse when she remarried. 9 Plaintiff argues that Pirus was affirmed by the Ninth Circuit, but the relevant 10 holding was not. The only issue on appeal was whether the district court properly awarded 11 attorneys’ fees to the prevailing plaintiffs. See Pirus, 869 F.2d at 538 (“The district court’s 12 award of these fees is the only issue before us on this appeal.”). To decide that question, 13 the Ninth Circuit had to consider whether the government took a “substantially justified” 14 position under the Act, a question it reviewed only for abuse of discretion. Id. at 540. The 15 court of appeals noted that “[w]ere we deciding whether the government’s position was 16 ‘substantially justified,’ we might be inclined to reach a different result from that reached 17 by the district court,” but could not find that the district court’s decision was so erroneous 18 as to constitute an abuse of discretion. Id. The Ninth Circuit decision did not affirm the 19 district court’s holding on the merits – a holding that concerned a section of the Act not at 20 issue in this case. Pirus does not help Plaintiff.4 21 2. Geertgens v. Colvin. 22 Plaintiff also relies on Geertgens v. Colvin, No. 13 CIV. 5133(JCF), 2014 WL 23 4809944 (S.D.N.Y. Sept. 24, 2014), a case that addressed the same issue as this case. The 24 divorced plaintiff in Geertgens remarried before her first husband died, and later sought 25 surviving spouse disability benefits when he passed away. The district court ruled in her 26 favor by relying on the Pirus decision and the SSA’s removal of paragraph (e)(4) from the 27 4 Plaintiff’s counsel argued at the hearing that this case is controlled by the 28 injunction entered by the district court in Pirus. This clearly is not correct. Pirus concerned a different statutory provision, and Plaintiff was not a member of the Pirus class. □□ regulations after Pirus. Id. at *3. The district court held that “[t]his alteration [to the 2|| regulation] makes clear that, regardless of any ambiguity in the wording of Section 3|| 404.336(e), the regulation does not require a surviving divorced spouse’s remarriage to 4|| have occurred after the death of the insured individual for the spouse to qualify for widow’s || insurance benefits.” Id. 6 The district court in Geertgens never mentioned, much less construed, the language 7\|| from the statutory parenthetical that controlled that case and controls this one: that the 8 || applicant “was entitled before such marriage occurred to benefits based on disability under 9|| this subsection.” 42 U.S.C. § 402(e)(3)(A). Nor did the court recognize that Pirus 10 || concerned a separate part of the statute. Geertgens is not persuasive authority for Plaintiff’ s || position.° If. Conclusion. 13 The Court concludes that Plaintiff is not entitled to surviving divorced spouse benefits based on disability because she was not entitled to such benefits before marrying 15|| Mr. Burke. See 42 U.S.C. § 402(e)(3)(A). As a result, the Court will enter judgment in favor of the Commissioner. 17 IT IS ORDERED that the final decision of the Commissioner of Social Security denying Plaintiffs claim for benefits (Tr. 9-17) is affirmed. The Clerk of Court shall enter 19 || judgment accordingly. 20 Dated this Ist day of December, 2023. 21 Saul 6 Cou 23 David G. Campbell Senior United States District Judge 25 26 27 > Plaintiff also argues that her position is supported by the public policy favoring 28 marriage and remarriage, but she cites no authority suggesting that the Court can disregard the clear language of the Act on the basis of public policy.