The interconnected economy and the broken leg
A hotel is the last link in a chain the orders broke at every joint: the border, the airport, the pier, the highway, the convention center, the school, the transit line and the court. The statute reaches every joint, because it asks only whether an order from an appropriate authority limited commerce, travel or group meetings and whether the operation was suspended because of it; it does not ask that the order name the hotel. And the chain, once broken by order, was not made whole on the day the last general restriction lifted: the orders' own reopening steps fixed a restoration schedule that ran to the last weeks of June 2021 in the largest markets, into the third quarter in Hawaii and New Mexico, and was interrupted again in July, August and September 2021 by orders that reinstated the workplace infection-prevention and exposure-control requirements, universal indoor face coverings among them, conditioned entry and closed events. This section states the mechanisms, the rule that counterparty orders are orders, and the restoration analysis, from the text and from the orders' own terms.
The interconnected economy
The mechanisms
Six mechanisms carried the orders to this industry. The border and entry mechanism: from February 2, 2020 (China) and March 13, 2020 (the Schengen Area) to November 8, 2021, the entry proclamations excluded the foreign leisure and convention guest from the principal source markets; from March 20-21, 2020 to November 8, 2021, the land-border notices excluded the Canadian and Mexican day visitor and named "tourism purposes (e.g., sightseeing, recreation, gambling, or attending cultural events)" as the travel they excluded; from January 26, 2021, every arriving air passenger carried a negative test.237 The travel-quarantine mechanism: at least twenty-four States and the District quarantined the arriving traveler in 2020; Hawaii did so on every day of the period; New York City, Maine and New Hampshire made the hotel the checkpoint; the trip itself became the thing the order forbade or burdened, and the room sold for the trip went unsold or was converted to a quarantine cell.238 The gathering mechanism: the caps and venue closures cancelled the convention, the wedding, the banquet and the tour group in every State from March 2020 and in Hawaii through December 1, 2021; the convention centers of New York, Chicago, Boston, Philadelphia, Denver and Orlando closed by order or by the orders' bans in March 2020; Orlando's resumed limited events in July 2020 under the county caps, Philadelphia's reopened in June 2021, McCormick Place in July 2021, and the BCEC hosted no public convention until September 3, 2021.239 The cruise mechanism: the No Sail Order and the Conditional Sailing Order removed every passenger voyage from every United States port from March 14, 2020 to June 2021 and every pre- and post-cruise hotel night, shore excursion and port provisioning trade with it; Providence barred cruise vessels by ordinance.240 The workforce mechanism: stay-at-home orders, school closures, quarantine and isolation directives, the transit exposure controls, curfews, the visa suspension and the paid-leave mandate governed whether the housekeeper, cook, dealer and desk agent could report, commute and leave a child at school.241 The counterparty mechanism: the closed casino next door, the closed attraction, the cancelled festival, the suspended court calendar and the closed federal building each emptied the rooms that depended on them.242
Counterparty orders are orders
The clause's words are "orders from an appropriate governmental authority limiting commerce, travel, or group meetings." An order that suspended cruise embarkation limited travel and commerce; an order that closed a convention center limited group meetings; an order that quarantined the guest limited travel; an order that closed the school limited group meetings; each is an order the clause names, and each suspended a portion of the hotel's operation because of the order. The Notice's own supplier rule, Q&A-12, reaches the same result by the same logic: an employer "may be considered to have a full or partial suspension of operations due to a governmental order if, under the facts and circumstances, the business's suppliers are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations."243 The United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party" and that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier."244 The airline, the cruise line, the convention center, the school and the border post are this industry's suppliers of guests, groups and labor, and the orders on them are treated here as the orders they are, not as background.245
The broken leg
The grammar
The clause asks whether the operation "is fully or partially suspended during the calendar quarter." The phrase "during the calendar quarter" modifies "suspended." Congress did not write "orders in effect during the quarter," "orders issued during the quarter" or "orders that first took effect during the quarter." An operation whose suspension began under an order and continued into a quarter is suspended during that quarter; the clause's tense is the present of the suspension, not the date of the order.246
The definition
Tri-State fixed the definition on the United States' own agreed words: a suspension is "[t]he act of temporarily delaying, interrupting, or terminating something," and a partial suspension "is a temporary delay, interruption, or termination of a portion an employer's business."247 A delay is a suspension. The delay in restoring a ballroom's event calendar, a casino floor's positions, a resort's group blocks or a convention hotel's sales staff after an order emptied them is a delay the order caused, and but for the order no law would have emptied them.248
The Notice's own recognition
Q&A-22 provides that an employer suspended "during a portion of a calendar quarter is an eligible employer for the entire calendar quarter"; Q&A-16 recognizes that where an employer "incurs a significant delay (for example, beyond 2 weeks)" in restoring comparable operations, "the employer's trade or business operations may be deemed subject to a partial suspension during that transition period."249 The Service's own document therefore treats the transition out of an order as a period of suspension.
What the orders compelled this industry to dismantle
The 2020 orders compelled the industry to close rooms to leisure guests and suspend reservation channels; to lay off or furlough the housekeeping, food-and-beverage, banquet, casino and sales workforce (accommodation employment fell from 2,107,800 in February 2020 to 1,056,600 in May 2020); to cancel the group calendar for 2020 and much of 2021; to close ballrooms, pools, spas, gyms and gaming floors and remove their furniture, machines and tables; to end the seasonal foreign-labor program; to release inventories and suppliers; and to convert rooms to quarantine, isolation and medical use.250 The reopening orders then fixed the schedule on which those functions could be rebuilt, step by step and percentage by percentage.
The restoration arithmetic
The arithmetic is the orders' own. Nevada: dark March 17, 2020; open June 4, 2020 under Board policies with positions removed and showrooms closed; conventions closed to the public to October 1, 2020 and then 250 or 50 percent under approved plans; 25 percent from November 24, 2020; 35 percent from February 15, 2021; 50 percent from March 15; 80 percent in Clark County from May 1; uncapped June 1, 2021; face-covering condition, the exposure control of Directive 047 and Notice 2021-71, reinstated July 30, 2021.251 Massachusetts: casinos closed March 15, 2020; open July 6, 2020 with three players per table and no craps, roulette or poker; lodging at 25 percent December 26, 2020 to February 8, 2021 and 40 percent to May 29, 2021; casinos at 25 percent from December 26; craps March 11, 2021; every order rescinded May 29, 2021.252 New Mexico: lodging at 50 percent March 19, 2020; 25 percent April 7 to May 31; 50 percent June 1; 75 percent for certified operators September 4; 60 and 25 percent October 16; closed to leisure guests for the uncertified November 16 to December 1; 40 to 100 percent by county color December 2, 2020 to June 30, 2021; uncapped July 1, 2021; universal indoor face coverings, the airborne-transmission control added to the binding COVID-Safe Practices, August 20, 2021.253 Illinois: casinos closed March 16, 2020; open July 1, 2020; hotel meetings forbidden and casinos closed November 20, 2020; Tier 3 to Tier 2 to Tier 1 to Phase 4 between January 15 and February 4, 2021; Bridge Phase May 14; Phase 5 June 11, 2021; universal indoor face coverings, the airborne-transmission control of EO 2021-20, August 30, 2021; McCormick Place closed from March 2020 to July 2021.254 Hawaii: every arrival quarantined from March 26, 2020; test exception October 15, 2020; ten days from December 17, 2020; in-State vaccinated exception June 15, 2021; domestic vaccinated exception July 8, 2021; hotel plans mandated June 7, 2021; new proclamation August 5 and gathering caps August 10, 2021; O'ahu events closed September 22, 2021; caps to December 1, 2021; quarantine and face-covering rules through 11:59 p.m. March 25, 2022.255 New York: casinos closed March 16, 2020 and reopened September 9 at 25 percent; catering at 50, 25 and 10 in the winter zones; 33 percent events venues April 2, 2021; caps lifted May 19 and June 15, 2021; the Javits Center without events from March 10, 2020; Key to NYC from August 17, 2021.256 Connecticut: lodging prohibited April 2 to June 17, 2020; Sector Rules at 50 percent to May 20, 2021; traveler quarantine to March 19, 2021.257 Boston: the BCEC a field hospital from April 10, 2020 and without a public convention until September 3, 2021.258 In every one of these markets the last step of restoration fell within a few weeks of the third quarter or inside it, and in most of them a new order arrived inside the quarter before the calendar could refill. A group sales office that could book nothing for fifteen months, a banquet department without a banquet for a year, a casino floor that removed half its machines and then reinstalled them, and a resort whose every guest was a quarantine case until July 8, 2021 did not resume normal operation on the morning the last cap lifted. An employer whose operation was ordered suspended through June 30 was not walking normally on July 1.
The instruments still in force
The restoration analysis stands on its own, and the third quarter of 2021 does not depend on it. On every day of that quarter the federal conveyance, testing, entry, border, cruise and Title 42 orders, Hawaii's proclamations and quarantine, Kansas's quarantine, Louisiana's Order No. 24, Nevada's accommodation statute, Philadelphia's Full Reopening Order and New Mexico's June 30 order were in force; inside the quarter the face-covering reinstatements, workplace infection-prevention and exposure-control requirements on every indoor public space, of the seven States and the District that required them of every person, the four States that required them of the unvaccinated, and more than thirty metros (B-8 to B-14 in the six quarters section, and the State and metro tables on this page), the vaccination conditions of four of the largest markets and two territories, Hawaii's caps and O'ahu's event closures, Nevada's and Louisiana's gaming orders and the federal contractor orders arrived; and the school, quarantine, court, transit and eviction orders governed the workforce and the guest throughout. The third quarter of 2021, subpart B, lists them one by one. They are the orders relied on, and the finding for the quarter rests on them.259