The Interconnected Economy and the Broken Leg
Two propositions complete the analysis. First, the orders that reached this industry's counterparties are orders in the statute's words, and the United States has admitted as much. Second, an operation that an order terminated in the spring of 2020 and again in the winter of 2020-21 was not restored to its ordinary course on the day the last 2020-21 condition lapsed; the restoration the orders' own steps compelled ran into the third quarter of 2021, where the second round of orders met it, and the clause's grammar reaches it.
The interconnected economy
The text and the admission
The Suspension Clause requires "orders ... limiting commerce, travel, or group meetings," and describes the orders by their object, not by their addressee. The United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party (such as an order that suspends the operations of a supplier of the business)," and the Notice's Q&A-12 applies exactly that logic to a manufacturer whose supplier was closed by another jurisdiction's order.149
"[A] business may be suspended 'due to' a government order addressing a third party (such as an order that suspends the operations of a supplier of the business)."
Br. for Appellees at 41
The logic does not stop at suppliers. An order that closes a public school district closes the bus company, the food-service vendor, the after-school provider and the tutoring firm that operate inside its buildings and under its contracts; an order that confines a family at home removes the child from the private school's classroom and the child care center's room; an order that suspends the entry of aliens from India empties a college's dormitory; an order that requires a mask of every bus rider governs the aide's commute; an order that closes a hospital's elective services to outside contractors removes the school's contract nurse; and an order that quarantines every exposed household removes the teacher and the student together.
The mechanisms
Six mechanisms carried the counterparty orders to this industry, and each is documented with instruments in the layer inventory above. Supply chain and borders: the entry proclamations, the suspension of consular services, the Student and Exchange Visitor Program's terms, the land-border notices, the Title 42 orders and the pre-departure test order fixed the international cohort of every college and boarding school for four consecutive academic terms (Ex. FED-200; Ex. FED-201; Ex. FED-207; Ex. FED-208; Ex. FED-232; Ex. FED-233; Ex. FED-037; Ex. FED-038; Ex. FED-042; Ex. SEC-15-004; Ex. SEC-15-005; Ex. AGY-FED-LABOR-IMMIGRATION-070; Ex. AGY-FED-LABOR-IMMIGRATION-071). Workforce, schools and child care: the closure orders on the workforce's own children, the paid-leave mandate whose qualifying reasons named the closure of "a school or place of care," the quarantine standing orders and the eviction moratoria (Ex. FED-170; Ex. FED-171; Ex. FED-172; Ex. FED-025; Ex. FED-026; Ex. MET-SAN-024; Ex. MET-STL-067; Ex. SC-062). Travel, tourism and gatherings: Hawaii's Safe Travels regime, the interstate quarantines and the gathering caps that governed every graduation, game, performance, open house and campus event (Ex. SEC-15-062; Ex. MN-032; Ex. DC-080; Ex. CT-002; Ex. NC-002), the gatherings themselves, from the national conventions of Anaheim, Chicago and Boston to every commencement and open house, being catalogued with their venue orders in the Library. Courts and public offices: the judicial emergency and courthouse orders under which every school's licensing, employment and face-covering disputes were heard, and the closed licensing and fingerprinting counters of 2020 (Ex. MET-DFW-095; Ex. MET-HOU-052; Ex. MET-DEN-058; Ex. MET-DEN-066; Ex. MET-LAS-019; Ex. MET-MSP-064; Ex. WA-022). Transit: the federal conveyance order and the transit agencies' reductions and face-covering rules (Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. ECO-B-097; Ex. ECO-B-098; Ex. ECO-B-099; Ex. ECO-B-027; Ex. MET-BAL-105; Ex. MET-BAL-107; Ex. MET-DFW-094). Health care as counterparty: the health care worker vaccination orders of July through September 2021 and the Healthcare Emergency Temporary Standard on the nurses, therapists and campus health centers under contract to schools (Ex. ECO-B-083; Ex. ECO-B-084; Ex. ECO-B-030; Ex. ECO-B-055; Ex. MET-LA-023; Ex. MET-PHL-021; Ex. FED-080; Ex. FED-081). The Federal Reserve's Beige Book of September 8, 2021 reported the workforce mechanism in the central bank's words, naming child care availability among the constraints on labor supply (Ex. ECO-B-090).150
The districts as counterparties
The largest school districts are governmental authorities and, for the private employers that operate inside them, counterparties. Chicago's Board of Education governed every contractor through emergency resolutions from March 25, 2020 through fiscal 2022 and adopted remote education policies in June and August 2021 (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-001; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-003; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-006; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-007); Houston closed on March 13, 2020, taught virtually for the first six weeks of 2020-21 and required face coverings in every school and on every bus from August 12, 2021 (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-045; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-046; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-047); Fairfax opened 2020-21 virtually and required staff vaccination or testing from August 23, 2021 (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-050; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-052); Prince George's ran distance learning from August 31, 2020 to April 8, 2021 and opened 2021-22 under face-covering requirements and employee testing (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-013; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-015; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-017); Los Angeles Unified closed on March 16, 2020 and resolved on September 9, 2021 to require vaccination of every student twelve and older (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-028; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-031); New York City's Department of Education fixed its 2021-22 measures on August 26, 2021 (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-008). Each of those decisions suspended a bus route, a meal contract, an after-school program, a tutoring engagement or a substitute pool. Where the decision is embodied in a board resolution, policy or mandate that is itself an exhibit (Chicago's resolutions and remote education policies, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-001, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-003, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-006 and Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-007; Los Angeles Unified's emergency authorization and resolution, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-028 and Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-031; Houston's face-covering mandate, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-047; Fairfax's staff requirement, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-052; New York City's 2021-22 measures, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-008), that instrument is an order of a governmental authority limiting commerce and group meetings; where the exhibit is the district's announcement of the decision (Houston's, Fairfax's and Prince George's announcements, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-045, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-046, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-048, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-050, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-013, Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-015 and Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-017), it is cited as the record of the decision and of the State and county orders under which the district acted, and not as an order.151
The counterparty orders as orders
Each instrument named above is an order, proclamation, rule, statute or resolution from an authority with power over the commerce, travel or meeting it limited. Under the statute's text, under Q&A-12's logic and under the United States' admission, an order on a family, a district, a carrier, a consulate, a court or a hospital that interrupted a school's or a child care center's operation is an order "limiting commerce, travel, or group meetings" due to which that operation was partially suspended. The Service's Chief Counsel memorandum on supply chains, which requires that the supplier itself have been closed by order, adds a condition Congress did not write and describes a case (the closed supplier) that is one instance of the rule, not its limit; the United States' own brief states the rule without that condition.152
The broken leg
The grammar
The clause makes an employer eligible where the operation "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended": it asks when the suspension existed, not when the order was signed or when it expired. Congress did not write "due to orders in effect during the calendar quarter," and it did not write "for so long as the orders remain in force." Where an order terminated an operation and the operation had not returned to its ordinary course when the quarter opened, the operation was "partially suspended during the calendar quarter," and it was so "due to" the order, because but for the order the interruption would not have occurred.153
Tri-State's definition and but-for holding
The United States agreed, and the court held, that a suspension is "[t]he act of temporarily delaying, interrupting, or terminating something," and that a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business."154 A delay is a suspension. An order that closed a classroom for three months and reopened it in cohorts delayed the return of every child outside the cohort; an order that emptied a dormitory in March delayed every housing contract into the next year; an order that cut a child care room to a group of six delayed the return of the seventh child and the teacher hired for her; an order that cancelled a season delayed every gate, every rental and every camp booked on it. The court held that causation is but-for and that the United States' "proximate, independent and sufficient cause" gloss "improperly adds words into the statute."155 But for the orders, the classroom would not have emptied, the staff would not have been furloughed, the ratios would not have been cut, the season would not have been cancelled and the dormitory would not have been closed; the restoration of each is a consequence of the order and of nothing else.
The Notice's own recognition
Q&A-22 provides that "[a]n employer with business operations that are fully or partially suspended due to a governmental order during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."156 Q&A-16 recognizes that a change compelled by order carries a transition period ("some adjustment period is expected") and provides that where the transition takes more than about two weeks ("a significant delay (for example, beyond 2 weeks)") the employer's operations "may be deemed subject to a partial suspension during that transition period."157 The Service's own construction therefore treats a compelled transition of more than two weeks as a suspension; the restoration described below, measured from the orders' own steps, ran for months, and a school's move to remote instruction in March 2020, its move back to hybrid instruction in the fall, its move to remote again in the winter and its move back in the spring were four compelled transitions in thirteen months.
What the orders compelled this industry to dismantle
The closure orders of March 2020 compelled every private school, college, tutoring business and child care center in the country to send its students home, to furlough or dismiss the aides, drivers, cooks, coaches and child care teachers whose work is presence (the Bureau of Labor Statistics counted 372,000 child day care jobs lost between February and April 2020 and 544,400 in private educational services), to cancel every camp, season, performance, ceremony and tour, to close or refund its dormitories and dining halls, to suspend its bus, food and cleaning contracts, and to build, from nothing and under the regulators' conditions, a remote instruction operation for which it had no devices, no schedule and no trained staff (Ex. SEC-15-009; Ex. SEC-15-006; Ex. SEC-15-007; Ex. AGY-ST-EDUCATION-HIGHER-ED-065).158 The child care orders compelled every center outside the essential list to close its rooms and every center inside it to cut them to emergency ratios and to serve a different set of families under a different license. The winter orders of November 2020 through January 2021 compelled the same dismantling a second time in Kentucky, Michigan, New Mexico, West Virginia, Marion County, New York City, Montgomery County (Pennsylvania) and Philadelphia. The sports orders compelled it a third time for the athletics function in Michigan, Minnesota, West Virginia, New Mexico and Pennsylvania.
How long the orders' own steps took to restore it
The restoration was governed by the orders, and the orders fixed its pace. A private school closed in March 2020 was permitted to reopen in the fall of 2020 only on a State-fixed date (August 17 in Arizona; September 8 in Vermont, West Virginia, Harris County and Fairfax; September 7 in Bexar County; September 28 in Tarrant County), only under cohort, distance and face-covering conditions (New Jersey, Illinois, Connecticut, Ohio, Nevada, Delaware, Texas, New York), only if its county's metrics permitted (California, Oregon, Minnesota, New Mexico, Kentucky, West Virginia, Michigan), and, in Los Angeles County, Sacramento County, Dane County, Milwaukee and Marion County, not at all for weeks or months; it was closed again by name in eight jurisdictions in the winter; it was ordered back on a State-set date between January 19 and April 26, 2021 under the same conditions; and it ran to June 2021 under them (Ex. SEC-15-019; Ex. VT-028; Ex. WV-044; Ex. MET-HOU-040; Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-050; Ex. MET-SAT-036; Ex. MET-DFW-049; Ex. SEC-15-014; Ex. IL-020; Ex. CT-026; Ex. SEC-15-069; Ex. NV-023; Ex. DE-029; Ex. TX-052; Ex. NY-122; Ex. SEC-15-053; Ex. OR-022; Ex. MN-028; Ex. NM-041; Ex. KY-034; Ex. WV-046; Ex. SEC-15-052; Ex. MET-LA-009; Ex. MET-SAC-023; Ex. MET-MKE-012; Ex. MET-MKE-059; Ex. MET-IND-026; Ex. MI-061; Ex. NM-046; Ex. MET-IND-035; Ex. MET-NYC-039; Ex. MET-PHL-010; Ex. WV-055; Ex. IA-045; Ex. NH-034; Ex. AZ-035; Ex. OR-039; Ex. NC-033; Ex. WV-062; Ex. SC-044; Ex. AGY-ST-EDUCATION-HIGHER-ED-068). A child care center closed on March 23 or 26, 2020 reopened on May 31, June 15 or June 29, 2020 in groups of six, ten or fifteen under attestation and standards, had its ratios restored in August 2020 (Ohio) or March 2021 (Kentucky), and ran under emergency rules to June 30 or July 13, 2021 in Oregon, Maryland, Delaware and Connecticut (Ex. SEC-15-071; Ex. SEC-15-013; Ex. MA-022; Ex. KY-070; Ex. OR-013; Ex. MD-034; Ex. DE-039). A college that ceased in-person instruction in March 2020 reopened in the fall only under a submitted plan and ran under State conditions to April 23, 2021 (Denver), June 25, 2021 (New York) or June 30, 2021 (Oregon and Washington), then was placed under new requirements on July 12, 2021 (Washington) and new vaccination orders from August 2 (Denver) to August 27, 2021 (Washington) (Ex. SEC-15-018; Ex. MET-DEN-037; Ex. MET-DEN-015; Ex. NY-112; Ex. OR-021; Ex. WA-071; Ex. WA-074; Ex. MET-DEN-023; Ex. WA-081). The last 2020-21 condition lapsed between May 29 and July 30, 2021; the first 2021-22 condition attached between July 12 and September 7, 2021; and in that interval, where there was one, every school had to rehire and retrain a staff the orders had dispersed, rebuild an enrollment the closures had cut, restart the bus, food, athletic and housing operations the orders had suspended, and reopen a child care room to a full complement of children for the first time in fifteen months. An employer whose operation was ordered suspended through June 30 was not walking normally on July 1.
What was still in force when the general restrictions ended
The restoration did not proceed under no orders. When the last 2020-21 school orders lapsed, the federal conveyance order, the entry and SEVP orders, the federal workplace principles, the quarantine standing orders, the preemption statutes, Colorado's Public Health Order 20-38, Connecticut's Executive Order 9 school rules as extended by Executive Orders 12B and 13, Louisiana's school reporting order, Virginia's Chapter 456, Philadelphia's Full Reopening Order, Columbus's public health emergency, Illinois's re-issued school conditions, Indiana's control measures, the child care licensing conditions of New Jersey, Washington, Oregon, Maine and Nebraska and the Head Start and stabilization grant terms were in force; and within twelve days of July 1 California had placed every classroom in the State under universal face coverings and its exposure and quarantine rules (July 12), within a month Washington had prohibited every school from operating outside the Department of Health's requirements (July 30) and the District had placed every school and child care setting under indoor face-covering and exposure-control requirements (July 31), within five weeks Oregon (August 2), Illinois (August 4), Nevada (August 4), Louisiana (August 4) and Connecticut (August 5) had followed, and within six weeks New Jersey (August 9), Kentucky (August 10), California's staff order (August 11) and Virginia (August 12) had completed the second round's first half.159 The continuing suspension of the third quarter of 2021 therefore rests on four independent footings: the orders in force on every day of the quarter; the orders issued inside it; the licensing, contract and grant conditions the regulators kept in force after the general restrictions ended; and the restoration compelled by the lifted orders' own steps. Each footing is independently sufficient, and the finding for that quarter above rests on all four: the first two on the instruments in force, the third on the conditions the regulators kept in force, the fourth on the statute's grammar and on Tri-State's definition of a suspension as a delay.