The Interconnected Economy and the Broken Leg
This industry moves and stores every other industry's goods, transacts across every State line and two international borders, hires through State-run tests and federally regulated collection sites, and enters every port, plant, store, hospital and school in the country through a door the receiver controls. 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 operation; the orders' own reopening steps show that the restoration ran into and through the third quarter of 2021; and the clause's grammar and Tri-State's definition make the continuing suspension a suspension "during the calendar quarter"; the Notice's own words confirm it.
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, the Title 42 orders, the Defense Production Act orders and the scarce-materials designation governed the tractors, parts, tires, protective equipment and wholesale inventories the industry bought and the cross-border loads it carried.150 Customers as counterparties: every closure, cap, protocol and vaccination-proof order on a shipper or receiver fixed whether and how a dock could receive.151 Workforce, schools and child care: the school closures of 2020, the FFCRA mandate through December 31, 2020, the quarantine and isolation orders and the school masking and quarantine rules of the 2021-22 year removed hourly, non-teleworkable workers from the floor by law.152 Travel and routes: the State quarantine and checkpoint orders, the lodging and plaza closures and the dine-in closures at every truck stop governed the driver's day; the conveyance order governed his cab and every gate he entered.153 Credentials: the motor-vehicle closures, the skills-test suspensions and the collection-site limitations governed whom the industry could hire.154 Transit: the conveyance order, the TSA directives and the transit agencies' rules conditioned every commute from February 1, 2021, and the agencies' 2020 rules before that.155
Counterparty orders as orders
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:
"[A] business may be suspended 'due to' a government order addressing a third party."Br. for Appellees at 41 n.5
The supplier of a carrier is the shipper whose plant produces the load and the receiver whose dock accepts it; the supplier of a warehouse is the retailer whose stores it replenishes; the supplier of a wholesaler is the restaurant, the salon, the contractor and the clinic that buy from it; the supplier of a driver is the motor-vehicle office that tests him and the truck stop that feeds him.156 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. The Service's Chief Counsel memorandum AM 2023-005 would convert Q&A-12 into "a narrow, limited exception" and require the employer to produce the supplier's order; it says of itself that it "may not be used or cited as precedent," Tri-State refused to give such a memorandum weight, and the words it adds appear neither in the statute nor in the Notice as the United States quoted it to two courts.157
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."158 Tri-State holds that a suspension includes a "delay" and that causation is but-for.159 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(4) treats a "significant delay ... in moving operations" as "a partial suspension during that transition period," offering two weeks only "for example."160 A lane terminated in March 2020, permitted at half its receiver's capacity in May, cut again in December and permitted in full only in June 2021 was delayed by those orders on every day between, and the delay did not end on the day the last cap lifted. The Service's memorandum AM 2023-005 asks whether a lifted order "constitute[s] a governmental order in subsequent calendar quarters"; the statute asks whether the operation was suspended during the quarter due to orders, and the suspension an order caused continues because of it for the period the compelled dismantling took to reverse.161
The restoration arithmetic for this industry
What the orders compelled this industry to dismantle is recorded in the orders themselves. Wholesale lines: Pennsylvania ordered five of them to cease physical operations on March 19, 2020 and released its counties in five weekly steps from May 8 to June 5, 2020; New York closed non-essential wholesale trade to in-person work on March 22, 2020, reopened it at fifty percent occupancy on May 15 and June 8, 2020, and lifted the mandatory guidance only on June 15, 2021, then required every New York employer to adopt an exposure-prevention plan by August 5, 2021 and activated it on September 6.162 Floors and docks: New Jersey's eleven warehouse rules ran from April 10, 2020, were carried into Executive Order 192 on November 5, 2020 and ran for unvaccinated or unverified employees, with the daily health checks, through the third quarter of 2021 under Executive Orders 242 and 243; Ohio's sheet ran from May 4, 2020 to June 2, 2021; Minnesota's plans from April 27, 2020 to June 30, 2021; Pennsylvania's Worker Safety Order from April 19, 2020 to May 31, 2021; Michigan's rules from October 14, 2020 to June 22, 2021; California's, Virginia's, Washington's, Oregon's and New Mexico's standards through the third quarter of 2021.163 Customers: dining rooms were ordered closed or confined to takeout between March 15 and April 3, 2020, reopened at twenty-five percent in May, fifty in June, closed again in the winter in ten States, and permitted one hundred percent only on dates that ran from September 25, 2020 (Florida) to June 30, 2021 in the closure States that kept caps longest (New York and California June 15; Washington and Oregon June 30) (and in Hawaii never, with a fifty percent cap re-imposed August 10, 2021); non-essential retail closed in March 2020 and reopened by curbside in May and in-store at capped percentages through the spring of 2021; construction and manufacturing closed in March 2020 in the closure States and reopened under site protocols from late April and May.164 Credentials: California's DMV closed its field offices on March 27, 2020, suspended behind-the-wheel tests again from December 2020 to January 11, 2021, and on September 2, 2021 extended every commercial license, permit and endorsement expiring since March 2020 through November 30, 2021; New Jersey's Motor Vehicle Commission closed for four months and extended every commercial credential to December 31, 2020; Wisconsin cancelled its skills tests in March 2020.165 Borders: the land borders ran at essential travel from March 21, 2020 through November 8, 2021, renewed eighteen times through September 22, 2021 without a day's interruption, and a nineteenth time on October 21, 2021 (Ex. FED-236, Ex. FED-259), which admitted vaccinated non-essential travelers only from November 8.166 A distributor whose lanes were re-let, whose drop sizes fell with its customers' seats and shelves, whose floor was rebuilt for one-way flow and half occupancy, whose drivers were not tested in 2020 and whose cross-border customers transacted through a documented essential-travel regime on July 1, 2021 was operating in the configuration the orders compelled, and the orders' own step dates fix how long the compelled configuration lasted.
What was still in force when the general restrictions ended
When the last State capacity orders lifted on June 30, 2021, the following remained in force and are relied on as the orders they are: the federal conveyance order and its directives, implemented at every sea port and on every vessel through the Coast Guard's bulletins; the Federal Railroad Administration's order; the land-border, entry, Title 42 and testing orders; the OSHA emphasis program and the Healthcare ETS; the Task Force's contractor rules from July 29, 2021 and Executive Order 14042 from September 9; the occupational standards of California, Virginia, Washington, Oregon and New Mexico, Washington's Proclamation 20-25.14 and the Washington Ready plan, and New Jersey's Executive Order 192 requirements as carried by Executive Orders 242 and 243; New York's HERO Act plans and their activation and its Department of Health's rules; Hawaii's face-covering requirement, an airborne-transmission control on every indoor workplace in the State, and Executive Order 21-05; the emergencies of twenty-five States; the quarantine and isolation orders; the court and transit rules; the school orders of the autumn; and the face-covering (workplace infection-prevention and exposure-control), vaccination and emergency orders of seven States, the District and the freight hubs listed in the third-quarter inventory, from July 17, 2021 onward. The third-quarter inventory 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.