Findings
On the statute's words, on Tri-State's definitions, on the United States' own representations and on the orders in the Library, employers in construction and the specialty trades in the United States had the operation of their trade or business partially suspended, and in the shutdown markets fully suspended, during each of the six calendar quarters from the second quarter of 2020 through the third quarter of 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. The Service's contrary account of the period is not a contest of weight; it is a description of a period that did not occur.
The second quarter of 2020
During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, the operation of the trade or business of employers in construction was fully suspended for weeks in Pennsylvania, New Jersey, Michigan, Washington, Vermont, New York, Boston, Philadelphia, New York City and the Bay Area and partially suspended everywhere in the United States, due to the construction shutdown and limitation orders of those jurisdictions, the stay-at-home and essential-operations orders of every other State and the District of Columbia, the mandatory site regimes that replaced the shutdowns from April 20 through June 8, 2020, the closures of building departments, recorders, licensing boards and examination centers, the supply and workforce orders of the United States and the closure orders on the industry's owners, each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.270
The third quarter of 2020
During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, that operation was partially suspended due to the mandatory construction site regimes of New York, Pennsylvania, Michigan, Washington, New Jersey, Massachusetts, the Bay Area, Los Angeles, Boston, Philadelphia and Kentucky, Virginia's Emergency Temporary Standard, the statewide face-covering and gathering orders, the owners' re-closure orders of California, Nevada and Hawaii, the federal leave and entry orders and the court and recorder orders in force on every day of the quarter.271
The fourth quarter of 2020
During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, that operation was partially suspended due to the occupational-safety rules of Michigan, Oregon and California, New Jersey's Executive Order No. 192, the continuing site regimes, the winter re-tightening orders that re-closed or re-capped the industry's owners, offices and building departments in more than twenty jurisdictions, the Navajo Nation's lockdown, the federal leave and entry orders and the licensing and recorder closures.272
The first quarter of 2021
During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, that operation was partially suspended due to the State occupational-safety standards of Virginia, California, Oregon, Washington and Michigan, the continuing site regimes of New York, New Jersey, Pennsylvania and the Bay Area, the winter orders in force to their stepped expiry, the federal workplace, conveyance and entry orders, OSHA's National Emphasis Program, the Navajo Nation's lockdown and the licensing closures.273
The second quarter of 2021
During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, that operation was partially suspended due to the construction site regimes in force to their stepped ends between May 29 and June 30, 2021, the workplace standards of California, Virginia, Oregon and Washington, New Jersey's Executive Order No. 192 as continued, New York's HERO Act, the federal workplace, conveyance, entry and health-care orders and the court, licensing and notarial instruments in force through the quarter's last day.274
The third quarter of 2021
During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, that operation was partially suspended due to the readopted Cal/OSHA standard, Virginia's Permanent Standard, Oregon's rule and face-covering rule, Washington's rule and proclamations, New Jersey's Executive Order No. 192 as continued, New York's HERO Act plans and activation, OSHA's National Emphasis Program, the Healthcare Emergency Temporary Standard, Executive Order 13991 and the Task Force principles, Executive Order 14042 and the Task Force guidance, the CDC conveyance order and TSA directives, the entry, border and maritime orders, the Delta-wave face-covering, emergency and school orders of the States and metros, the court orders of the United States and at least twenty-nine States, the licensing, recorder and paid-leave instruments and the tribal and territorial orders, each in force on some day of the quarter and each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.275
The standards the findings meet
The findings above are proved by a preponderance of the evidence, on public records of which a court takes judicial notice, in the form the issuing authorities published them. The positions on which they rest have substantial authority in the text of the Suspension Clause, in Tri-State, in Burrage, Gross, Nassar, Bostock and Abercrombie, and in the Notice's own Q&A-10, Q&A-12, Q&A-15, Q&A-17, Q&A-19, Q&A-20 and Q&A-22, and they therefore also have a reasonable basis and reasonable cause; a claim supported by them contains the information on which its correctness can be judged and rests on no position the Secretary has identified as frivolous. The United States has represented that the Notice has no force of law, that the ten percent figure is a safe harbor and not a floor, that eligibility is decided case by case on the facts and circumstances, that an order addressing a third party suffices, and that every claimant is entitled to litigate de novo in a refund suit; those representations are admissible against it, judicial estoppel is available against the contrary positions, and the Service is bound by its own directive to the Notice's favorable text. Employers in construction and the specialty trades are entitled to hold the United States to those positions.276 The standards of proof are set out at The Law: standards, and every exhibit cited on this page is held in the Library by its exhibit number, with the issuer, the dates of issue, effect and end, the quarters in force, the limitation types, the grade of verification and the file.