The interconnected economy and the broken leg
This industry lends to, insures and takes deposits from every other industry and every household, transacts through recorders, motor-vehicle offices, courts and sheriffs, hires through examinations and consulates, and moves its people and its cash through transit, airports and borders. An order on any of those is an order limiting commerce, travel or group meetings, and an operation of this industry delayed, interrupted or terminated because of it is suspended due to it. The orders of 2020 and the first half of 2021 compelled this industry to dismantle its collection process, empty its contact centers and back offices, confine its branches and convert its originations; the orders' own steps show that the restoration ran into and through the third quarter of 2021; and the clause's grammar, Tri-State's definition and the Notice's own words make the continuing suspension a suspension "during the calendar quarter."
The mechanisms
Six mechanisms carried orders addressed to others into this industry's operation. Supply chain and borders: the land-border notices, the entry proclamations and the Title 42 order confined cross-border customers, correspondent relationships and the staff of offshore operations and contact centers, and the national lockdown order of India (March 24, 2020) and the Philippines' Luzon community quarantine (March 16, 2020) governed the offshore operations and contact centers serving American institutions in the spring of 2020.159 Workforce, schools and child care: the school closures of the spring of 2020, the FFCRA leave mandate through December 31, 2020, the local sick-leave ordinances and the quarantine orders of every quarter removed the industry's staff from its branches and floors by law; the school face-covering and quarantine orders of the 2021-22 year did so again in the third quarter of 2021.160 Travel and gatherings: the interstate quarantines, the gathering caps and the stay-at-home orders ended the seminar, the member meeting, the community event and the customer review on which the advisory and agency functions run, and the federal regulators moved the meetings online by rule.161 Courts and public offices: the judicial emergencies of every State and the closures of recorders, clerks and motor-vehicle offices converted or closed the venues in which the industry's loans are made and enforced. Transit: the CDC conveyance order, the TSA directives and the transit agencies' rules conditioned every commute from February 1, 2021, and the agencies' service cuts and rider caps did so from March 2020.162 Health care as counterparty: the health-care-worker vaccination orders of August 2021 and the OSHA Healthcare Emergency Temporary Standard governed the hospitals, nursing homes and campuses that are the industry's benefits, insurance and institutional-banking customers.163
The customer and the collateral as counterparties
The statute's object is "commerce, travel, or group meetings," not the employer's premises. The Notice's Q&A-12 applies the clause exactly so, making an employer eligible "because its operations have been suspended due to the governmental order that suspended operations of its supplier," and the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."164 The supplier of a mortgage lender is the appraiser who could not enter the house, the notary whose in-person act was suspended, the recorder whose counter was closed and the title company confined to its own essential-services line; the supplier of an auto lender is the dealership closed as non-essential retail and the motor-vehicle office closed or by appointment; the supplier of a servicer's collection process is the court, the clerk and the sheriff whose dockets, writs and sales were stayed; the supplier of a small-business lender is the borrower whose restaurant, gym or store was closed by order; the supplier of an insurer's premium is the policyholder whose miles, payroll and receipts the stay-at-home orders cut, which is why California's Commissioner recited "the statewide and local public health stay-at-home orders" as the reason for the refunds he ordered. Each was closed or conditioned by order, and the operations that depended on it were suspended in part because of the order in the only sense the statute uses.165
The textual point
The clause reads "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended"; it asks whether the suspension existed at any time in the quarter, not whether an order was issued in or addressed to the quarter. Congress did not write "orders in effect during the calendar quarter."166 Tri-State holds that a suspension includes a "delay" and that causation is but-for.167 The Notice recognizes both propositions: Q&A-22 makes an employer whose suspension ends in the middle of a quarter eligible for the whole quarter, and Q&A-16 treats the time an employer needs to move between modes of operation as part of the suspension where the delay exceeds two weeks.168 A collection process ordered stopped on March 18, 2020, held stopped through July 31, 2021, held stopped as to eviction through September 30, 2021, and barred from its first notice through December 31, 2021 was delayed by those orders on every day between, and the delay did not end on the day the last moratorium lifted.
The restoration arithmetic for this industry
What the orders compelled this industry to dismantle is recorded in the orders themselves. The collection process: the CARES Act stopped every foreclosure on a federally backed mortgage on March 18, 2020; the agencies extended the stop on May 14, June 17, August 24-27 and December 2, 2020 and January 19, February 9, February 25 and June 24, 2021 to July 31, 2021; they extended the eviction stop on their own and insured properties on July 30, 2021 to September 30, 2021; the Bureau barred the first notice or filing on most mortgages from August 31 to December 31, 2021; the CDC stopped every residential eviction in the nation from September 4, 2020 to July 31, 2021 and again from August 3 to August 26, 2021; and the States stopped or conditioned foreclosures, evictions, garnishments and repossessions on calendars that ran to July 8 (Colorado), July 12-13 (Delaware), July 15 (Vermont), August 2 (New Mexico garnishments), August 15 (Maryland), August 31 and then January 15, 2022 (New York), September 30 and December 1, 2021 (California), September 30 and October 31, 2021 (Washington), October 3, 2021 (Illinois), October 12, 2021 (Minnesota), November 15, 2021 (New Jersey foreclosure removals), December 31, 2021 (Oregon foreclosures) and February 28, 2022 (Oregon's eviction safe harbor) and January 4, 2022 (New Mexico writs).169 A servicer whose default pipeline was frozen by law for sixteen and a half months did not, on August 1, 2021, possess the notices, the referrals, the filings, the sale dates, the redemption periods and the REO inventory that a functioning collection process carries; it possessed a queue that the orders had built and that the Bureau's rule then held to December 31, 2021, and the forbearance exits the Bureau told it to staff for were themselves the product of the statutory forbearance the CARES Act compelled.170 The branch: confined to drive-through and ATM operation or to essential transactions under distancing from March 2020, reopened at 25 and 50 percent between May 11 and June 22, 2020, placed under face-covering, screening and distancing requirements from June and July 2020, re-capped in the winter of 2020-21 in eleven jurisdictions, released from caps, in the States that still imposed them, between April 6 and June 30, 2021, and placed under indoor face-covering requirements again from July 17 to September 17, 2021 in seven States and the District, under the unvaccinated-person mandates of California and Connecticut, and in more than thirty metropolitan jurisdictions.171 The contact center and back office: emptied by telework mandate in March 2020, capped in the summer, emptied again from October 14 (Michigan), November 5 (New Jersey), November 11 (Iowa), November 17 (Washington), November 20 (Illinois), November 27 (Pennsylvania) and December 5, 2020 (California), released between February 6 and June 30, 2021, and governed from July 1, 2021 by the workplace standards of six States and the exposure-prevention plans of New York.172 The origination chain: appraisals deferred for 120 days on transactions closed by December 31, 2020 and converted to exterior-only and desktop reports to May 31, 2021; recorders closed or limited from March 2020, with the Fayette County Clerk resuming in-person transactions on April 12, 2021; motor-vehicle offices closed in March 2020 and by appointment in the District to July 19-20, 2021 and in Maryland to August 15, 2021; notarial acts under emergency regimes in eight States into the third quarter of 2021.173 Supervision and meetings: examinations off site from March 24, 2020, with the NCUA's Phase 1 return beginning July 19, 2021, as the supervisors' letters record; member meetings online from March 2020 through the 2021 meeting season under the Comptroller's meetings rule and the virtual-meeting practice NCUA's 20-FCU-04 carried.174 In each case the last step took effect between April 4, 2021 and September 30, 2021 or later, and the third quarter began within weeks of the steps that preceded it. An employer whose operation was ordered suspended through June 30 was not walking normally on July 1, and the orders' own step dates fix the arithmetic.
What was still in force when the general restrictions ended
When the last State capacity caps lifted in June 2021, the following remained in force and are relied on as the orders they are: the federal foreclosure moratoria to July 31 and the eviction moratoria to September 30, 2021; the CDC order to July 31 and from August 3 to August 26; the CARES Act's forbearance and reporting mandates; the Bureau's Bulletin 2021-02, its Regulation F rule and, from August 31, its Regulation X rule; the ARPA subsidy, the coverage mandates of the renewed public health emergency and the EBSA tolling; the State foreclosure, eviction, garnishment and repossession instruments of nineteen States and the District, thirteen of them on every day of the quarter; the insurance instruments of eight States; the workplace standards of six States and New York's exposure-prevention plans; the indoor face-covering orders of seven States and the District and of more than thirty metropolitan jurisdictions from July 17, 2021, airborne-transmission controls with a duty on the operator, with the unvaccinated-person mandates of California and Connecticut; the NCUA's, CFTC's, SEC's and FINRA's remote-operation instruments; the conveyance, entry and border orders; the school, quarantine, health-care, tribal and territorial orders on the workforce and counterparties; and the court orders of at least twenty-nine States. The third quarter of 2021, above, states them with dates. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter.