Manufacturing

The layer section counts the orders; the quarter section lists those in force in each quarter; the State table on this page lists the fifty-one State regimes. In the second quarter of 2020 forty-three States and the District had stay-home orders and every State had a gathering or closure order in force (Ex. LAW-203; Ex. LAW-230); in the third quarter of 2021, the quarter the letters most often name, the federal conveyance order (Ex. FED-020), the entry proclamations (Ex. FED-207; Ex. FED-208), the monthly land-border prohibitions (Ex. FED-233; Ex. FED-234; Ex. FED-235), the pre-departure testing order (Ex. FED-042), the Defense Production Act delegations and the scarce-materials designation (Ex. SEC-10-001; Ex. ECO-A-071), OSHA's National Emphasis Program (Ex. SEC-10-015), the Healthcare Emergency Temporary Standard (Ex. FED-080), the conveyance order as the Coast Guard's bulletins applied it at every sea port and the FRA's rail order (Ex. FED-020; Ex. AGY-USCG-PORTS-037, the implementing bulletin; Ex. AGY-AVIATION-SURFACE-014), the California, Oregon and Virginia workplace standards (Ex. SEC-10-041; Ex. SEC-10-055; Ex. SEC-10-043), the New York HERO Act plans (Ex. SEC-10-031), the face-covering and exposure-control orders of eight jurisdictions and some thirty metros (Ex. WA-078; Ex. SEC-10-036; Ex. NV-041; Ex. LA-036; Ex. NM-067; Ex. OR-048; Ex. DC-057; Ex. HI-024; Ex. MET-LA-018; Ex. MET-SFO-071; Ex. MET-CHI-026; Ex. MET-PHL-019; Ex. MET-BOS-013) and the school, child-care and health-care-worker orders of eighteen States were in force. The sentence is not a finding on a record; the National Taxpayer Advocate has explained that the 2024 letters were issued "based on the results of risk filter analyses rather than a prior examination."¹⁸¹ The Service's position is not a close call on a contested record. It is factually incorrect. It describes a period, March 2020 through September 2021, that did not occur.

The word "essential" appears nowhere in section 2301(c)(2)(A)(ii)(I) or section 3134(c)(2)(A)(ii)(I). The statute asks whether the operation was "fully or partially suspended," and an "essential" designation under a State's closure order is a permission to keep the plant open on the order's conditions; it is not a finding that nothing about its operation was suspended. The Notice says so: Q&A-10 lists among qualifying orders a curfew "that impacts the operating hours of a trade or business" and a health-department "workplace closure for cleaning and disinfecting" (927-28); Q&A-19 provides that an employer that "reduces its operating hours due to a governmental order is considered to have partially suspended its operations" (931); Q&A-17 treats a workplace closed "for certain purposes" that "may remain operational for other limited purposes" as partially suspended (930); and Q&A-17 and Q&A-18 treat the modifications required of open businesses as suspensions where their effect is more than nominal (930-31). The United States told the District Court that whether a business is "essential or non-essential will often vary from jurisdiction to jurisdiction" and is determined "by looking to the governmental order affecting [the employer's] operations," and that "orders that were otherwise directed at business operations (operational hours, space, etc.) would also be considered."¹⁸²

Whether a business is essential or non-essential will often vary from jurisdiction to jurisdiction ... orders that were otherwise directed at business operations (operational hours, space, etc.) would also be considered.

Doc. 44 at 30

The instruments show what "remained open" meant for a manufacturer: Michigan's manufacturing restart on May 11, 2020 was conditioned on daily screening, dedicated entry points, suspended tours, staggered shifts and shutdown for cleaning after every case (Ex. MI-026, § 11(k)); New Jersey's Executive Order 122 required every manufacturing business to bar non-essential visitors, cap worksite meetings below ten and stagger start, stop and break times (Ex. SEC-10-020, ¶ 3); Kentucky's Requirements bound every reopening manufacturer to six feet "for their entire shift" and to "minimal interaction between drivers at loading docks" (Ex. SEC-10-051); Massachusetts' checklist required that "[f]ace coverings are required for all workers" and partitions taller than a standing worker (Ex. SEC-10-046); Pennsylvania's Worker Safety Order bound every in-person business to stagger shifts, limit occupancy, provide and require masks and screen employees (Ex. PA-008); MIOSHA's Rule 5(8) prohibited in-person work that could feasibly be done remotely (Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. MI-054); the California, Oregon and Virginia standards bound every employer in those States through the third quarter of 2021 (Ex. SEC-10-041; Ex. SEC-10-055; Ex. SEC-10-043). An essential plant was an open plant operating under the order; the order is what the statute asks about, and "essential" is a word the statute does not contain.

The statute describes the orders by what they limit ("commerce, travel, or group meetings"), not by whom they address. The statute says nothing of the source of the order and nothing of its addressee. Q&A-10 itself lists, as the first example of a qualifying order, "[a]n order from the city's mayor stating that all non-essential businesses must close for a specified period," and, second in the same list, "[a] State's emergency proclamation that residents must shelter in place for a specified period"; a stay-at-home order addressed to the public is on the Service's own list. The United States told the District Court that the qualifying instruments are "orders, proclamations, or decrees from the Federal government or any State or local government" (Doc. 44 at 12), putting that list before the court, and the District Court held that Q&A-10 "provides a natural interpretation of the plain meaning of the statutory text" (Doc. 49 at 13).¹⁸³ A stay-at-home order limits travel by its terms; it confines the workforce, the customer, the technician and the salesperson to their homes; it is an order "limiting ... travel" if any order is. Michigan's Executive Order 2020-21 was addressed to "all individuals currently living within the State of Michigan" and in the same instrument prohibited every business from requiring workers to leave home (Ex. MI-011, §§ 1, 4); New York's Executive Order 202.8 was addressed to businesses not exempted as essential and ordered their in-person workforce to zero (Ex. NY-002; Ex. NY-003); New Jersey's Executive Order 107 told residents to stay home in paragraph 2 and told every business to telework in paragraph 10 (Ex. SEC-10-023). The distinction the ground draws does not exist in the instruments any more than in the statute. The United States has represented that a business may be suspended "due to" an order "addressing a third party" (Br. for Appellees at 41), and the public is a third party.

The comparable-operations test is a Notice gloss, not statutory text, and the United States has represented that the Notice "lacks the force of law."

The Notice ... lacks the force of law.

Doc. 44 at 19

Whether Notice 2021-20 exists or not, the statute will control whether a refund is warranted.

Doc. 44 at 24

Its history is set out on the Notice page: the FAQs of April 29, 2020 contained no such test (LAW-107; LAW-146); the four factors, the "critical" workspace factor and the transition-period sentence first appeared on the Service's website on March 1, 2021 (LAW-136; Ex. LAW-101), eleven months after the closure orders and after the 2020 quarters had ended. Applied on its own terms the gloss answers itself for a manufacturer. Q&A-16's third factor provides that where "the employer's physical work space is so critical to its trade or business operations that tasks central to the trade or business's operations are unable to be performed remotely, then this factor alone indicates that the employer is not able to continue comparable operations," and names as its examples "laboratories or manufacturing involving special equipment or materials that cannot be accessed or operated remotely"; its fourth factor treats an employer that "incurs a significant delay (for example, beyond 2 weeks) in moving operations to comparable telework" as "subject to a partial suspension during that transition period"; and Q&A-15's Example 3 (Employer E) holds a research company partially suspended because its laboratory work "cannot continue in a comparable manner" while its computer-modeling staff telework. The Notice's own text names the manufacturing work space as the case in which comparable operations cannot continue remotely, because a production line is not a laptop.¹⁸⁴ The telework orders are relied on for what they were: in Michigan, New Jersey and Pennsylvania a manufacturer's engineering, administrative and sales staff were ordered home for fourteen months (Ex. MI-026, § 11(a); Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. MI-054, Rule 5(8); Ex. SEC-10-023, ¶ 10; Ex. PA-016; Ex. PA-022), and the office that was ordered home was not comparable to the office that reviewed drawings at a bench with the customer's engineer; the floor was never orderable home at all, and the same orders governed it by screening, distancing, masking and exclusion. The statute contains no telework test; the Notice's own words carry the result, and they carry it against the Service.

Q&A-13 addresses an employer that itself "suspends some or all of its operations" in response to "a reduction in demand for its products or services"; it does not address an employer whose operation of selling is terminated because the buyer is closed, capped or barred by order. The exclusion the ground invokes is itself a March 1, 2021 addition: the Service's FAQ 32 of April 29, 2020 confined it to "an essential business that is not required to close its physical locations or otherwise suspend its operations" claiming a suspension "for the sole reason" of its customers' stay-at-home order (LAW-146; LAW-107); the Notice extended it to every employer and to any "reduction in demand" (Q&A-13, at 929) (Ex. LAW-101), eleven months after the orders of March 2020 and after every 2020 quarter had closed, and the United States has represented that the document carrying the extension "lacks the force of law." The statute asks whether "the operation of the trade or business" was suspended "due to orders," and the operation of selling is suspended when the buyer is ordered not to open, not to buy or not to receive. Q&A-12 states the rule for the supplier side and its logic runs downstream: an employer is suspended "due to the governmental order that suspended operations of its supplier," and by the same reasoning due to the order that suspended operations of its customer. The United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."¹⁸⁵

[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 customer orders are orders: the closure of every dealership and showroom in Michigan, Pennsylvania, Illinois and New Jersey in the spring of 2020 (Ex. MI-011; Ex. PA-002; Ex. SEC-10-034; Ex. SEC-10-023); the postponement of elective procedures in every State (Ex. NY-005; Ex. NJ-006; Ex. TX-004; Ex. OH-007; Ex. MN-005; and, for the winter of 2020-21, Ex. PA-025); the closure of construction in six States (Ex. PA-002; Ex. SEC-10-026; Ex. MI-011; Ex. NJ-011; Ex. WA-017; Ex. MA-008); the capacity orders on every restaurant, bar, hotel and venue; the Healthcare ETS, the CMS rules and the staff-vaccination mandates on every hospital and nursing home in the third quarter of 2021 (Ex. FED-080; Ex. FED-156; Ex. ECO-B-083; Ex. ECO-B-055); the land-border prohibition on every Canadian and Mexican buyer on every day from March 21, 2020 through September 30, 2021 (Ex. FED-221; Ex. FED-235). The ground confuses a customer who chose not to buy with a customer whom the law closed.

Q&A-14 addresses an employer that "voluntarily suspends" operations where the suspension "is not due to a governmental order" (Notice 2021-20, Q&A-14, at 929 (Ex. LAW-101)). Nothing relied on in this analysis was voluntary. Every modification in the quarter and function sections is tied to an instrument with a sanction: Michigan's misdemeanor (Ex. MI-011, § 14); New Jersey's penalties under N.J.S.A. App. A:9-49 and -50 (Ex. SEC-10-020, ¶ 8); Pennsylvania's enforcement by the Department of Health and the State Police (Ex. PA-002; Ex. PA-003); Cal/OSHA's citations under Labor Code §§ 6308 and 6317 (Ex. SEC-10-041); Oregon OSHA's under ORS 654.071 and 654.086 (Ex. SEC-10-055); Virginia's under Va. Code § 40.1-49.4 (Ex. SEC-10-043); the HERO Act's civil penalties and private right of action (Ex. SEC-10-029); the federal conveyance order's criminal penalties under 18 U.S.C. §§ 3559 and 3571 (Ex. FED-020); Oregon's civil penalty of $500 a day under OAR 333-019-1025 (Ex. OR-048); the District's $1,000 fines (Ex. DC-057); Los Angeles County's misdemeanor (Ex. MET-LA-018). A measure the law required on pain of penalty is not voluntary, and the United States has agreed that a change made under an order is caused by the order: Tri-State holds that "the required protocols and procedures to comply with the Proclamation" were caused by the order and that "[s]ick patients and employees alone did not require additional protocols."¹⁸⁶ This analysis relies on no measure that a manufacturer adopted on its own.

The ground also fails on its own premise. Q&A-14 reaches, by its own terms, only a suspension "not due to a governmental order" (Q&A-14, at 929), and the United States and the District Court have defined the excluded employer as one "not being ordered to do so" (Doc. 49 at 18; Br. for Appellees at 42). No manufacturer in this industry's principal States answered that description in any of the six quarters. The reopening orders permitted the plant to run only on conditions with the force of law (see the standing duties above). The standing statutes commanded the same conduct independently and under penalty: "Each person shall act responsibly to prevent and control communicable disease" (Ex. DUT-TX-001); "Each employer shall" provide a "reasonably safe and healthful" workplace with "methods of sanitation and hygiene" (Ex. DUT-TX-013); and the general duty clause, which the Service's own Office of Chief Counsel recites as a statute that "requires each employer to furnish to each of his employees employment and a place of employment free from recognized hazards" (Ex. DUT-FED-001; LAW-143). The legislatures then fixed the standard of care as compliance with governmental standards, guidance and protocols (Ex. DUT-TX-015; Ex. MI-056). The safe-workplace statutes had no COVID-19 content until the health authorities said what a safe plant required; the spaced line, the screened gate and the staggered shift were taken because those directives defined the duty, and would not have been taken without them. "Due to" is but-for causation (Tri-State at 17-19), and the causation here runs from the command to the measure without an intervening choice. The Notice's own words say the same: a modification "required by a governmental order as a condition of reopening" is a partial suspension due to the order (Q&A-18, at 930). A statute that commands conduct is an order from an appropriate governmental authority as surely as a Governor's proclamation is; the statute says nothing of the source of the order, and the Service's premise fails wherever a command reached the employer, which the layer section shows it did in every State on every day of the six quarters.¹⁸⁷

The 10 percent figure appears in no statute. The United States has told two federal courts what it is: "Effectively, this is a safe harbor ... Properly understood, it isn't an eligibility requirement"; the line "exists only as a safe harbor"; "the IRS did not say that a taxpayer cannot qualify for the ERC if they have been impacted less than 10 percent"; to the Ninth Circuit, "a quintessential safe harbor," "a safe harbor rather than a hard floor," and reading it as a floor "erroneously swaps an 'if' with an 'only if.'" The District Court held that the figure "is not an exclusionary cut-off point"; the court in Tri-State held that the Notice "provides a method for the test to be met not as a requirement to meet the test" and that a ten percent requirement "would read requirements into the statute that do not exist."¹⁸⁸

The 10 percent is not determinative for whether an employer has been partially suspended. ... Effectively, this is a safe harbor ... Properly understood, it isn't an eligibility requirement.

Doc. 44 at 14

That is a quintessential safe harbor. In reading the 10 percent provision otherwise, [the plaintiff] erroneously swaps an 'if' with an 'only if.'

Br. for Appellees at 37-38

Against those representations the Service's FAQ page states that "[t]he IRS considers 'more than nominal' to be at least 10% of your business" (LAW-120) and AM 2023-007 requires the employer to "substantiate that the modifications resulted in a reduction ... of not less than 10 percent" (LAW-143); the history on the Notice page shows that no percentage appeared in the Service's FAQs of April 29, 2020 or in their June 19, 2020 revision, which added only the words "more than a nominal portion," and that the two ten percent deeming rules first appeared in the Notice on March 1, 2021 (LAW-107; LAW-136; Ex. LAW-101). The Service cannot describe the figure as a safe harbor when the Notice is challenged and apply it as a floor when a claim is examined. Tri-State holds that a "portion" is any portion and that "more than nominal" does not mean "significant"; the eleven functions above are each a portion of a manufacturer's operation, and the closure of a production floor for seven weeks, the ordering of a technical office home for fourteen months, the closing of a border to every customer and supplier for twenty months and the cancellation of every trade show for a year are not nominal on any account. This analysis discusses the figure only as the United States' safe harbor, which the showing for manufacturing exceeds many times over, and holds the United States to what it told the courts.

The Suspension Clause asks whether a portion of the operation was suspended due to orders; "nominal effect" appears nowhere in it, and the sentence of Q&A-18 on which the ground rests is a gloss the United States has represented "lacks the force of law." The sentence is also a March 1, 2021 addition: the FAQs of April 29, 2020 contained no "nominal effect" test (LAW-107; LAW-146); their June 19, 2020 revision added "more than a nominal effect" only for the case where "all of an employer's business operations may continue, even if subject to modification," with no categorical sentence about masks (LAW-136); and the sentence that mask, glove and one-way-aisle rules "will not result in more than a nominal effect" appeared for the first time in the Notice (Q&A-18, at 931) (Ex. LAW-101), after the 2020 quarters had closed. Tri-State holds that "the required protocols and procedures to comply with the Proclamation" were suspensions the order caused, and a compelled modification of the production floor is a suspension of a portion of the operation on the words as written. The Notice's own words say the same: Q&A-18's text distinguishes a modification that "has more than a nominal effect on the business operations" from one that does not and names "requiring employees and customers to wear face coverings" among the modifications it contemplates, and Q&A-19 describes as a partial suspension a food processor that "reduces its daily operating hours by five hours per day" so that a deep cleaning ordered by the local health department "may be conducted within its workplace once every 24 hours" (931). Q&A-18's final sentence reaches, by its terms, only a mask or glove rule standing alone; every instrument on this page arrived as one condition of a regime fixing screening, distancing, exclusion, testing, training and records. The United States told the District Court that "employees having to wear face masks may impact business operations."¹⁸⁹

[E]mployees having to wear face masks may impact business operations.

Doc. 44 at 30

Q&A-19's Example is the closer analogy: Employer K, a food processor whose plant normally runs 24 hours a day and is ordered by the local health department to deep clean once every 24 hours, reduces its operating hours to comply and "is considered to have partially suspended its operations due to the governmental order requiring it to reduce its hours of operation"; a sanitation rule that takes hours off a manufacturer's clock is, in the Service's own example, a partial suspension. The manufacturing standards imposed not a mask but a regime: the Michigan restart safeguards ran to eleven numbered requirements including daily temperature screening, dedicated entry, suspended tours, staggered shifts and shutdown for cleaning (Ex. MI-026, § 11(k)); MIOSHA's rules added remote work where feasible and a manufacturing-specific rule (Ex. SEC-10-024; Ex. AGY-ST-LABOR-WORKPLACE-062; Ex. MI-054); Kentucky's bound the line to six feet "for their entire shift" and the dock to "minimal interaction between drivers" (Ex. SEC-10-051); the Cal/OSHA standard required exclusion of every exposed worker with pay, testing, a written program and records (Ex. SEC-10-039; Ex. SEC-10-041); Oregon's required exposure assessment, an infection-control plan, ventilation and, from September 16, 2021, medical-removal benefits (Ex. SEC-10-054; Ex. SEC-10-057); Virginia's required exposure classification of every job task and, for most production floors, a plan and training (Ex. SEC-10-042; Ex. SEC-10-043). A line run at distance by screened and masked workers, with exposed workers removed for ten to fourteen days on pay and shut down for cleaning after every case, runs slower and with fewer hands; that is a more than nominal effect by the Notice's own measure, and the United States' agreement in Tri-State that a "suspension" includes a "delay" makes the slowed line a suspension in terms.

Agreed as to a bare declaration, and this analysis relies on none as a suspending order. The State emergency declarations, the federal public health emergency (Ex. FED-016) and the national emergency (Ex. FED-001; Ex. FED-002) are cited as predicates, and the closing paragraph of the third-quarter section says so in terms. A proclamation or declaration that itself carries an operative provision limiting commerce, travel or group meetings is relied on as an order for that provision, which is what Q&A-10 lists among governmental orders ("A State's emergency proclamation that residents must shelter in place for a specified period"): Hawaii's Twenty-First Proclamation and its Emergency Proclamation of August 5, 2021 carried the Statewide Face Covering Requirement and Safe Travels (Ex. HI-023; Ex. HI-024); Louisiana's Proclamation 137 JBE 2021 required face coverings of every person indoors, one of the airborne-transmission controls the State imposed on every indoor workplace (Ex. LA-036); Washington's Proclamation 20-25 closed every business not exempted as essential (Ex. WA-016); Nevada's Declaration of Emergency Directives 003 and 047 closed, capped and imposed face-covering requirements (Ex. NV-004; Ex. NV-041). The orders relied on are the instruments that limited commerce, travel or group meetings under those declarations: closure orders, restart conditions, workplace standards, face-covering and exposure-control orders, gathering caps, travel quarantines, entry proclamations, border notifications, conveyance and testing orders, port and rail orders, school and health-care orders, each with an issuer, a date, an operative clause and a sanction. The ground answers an analysis that no one has offered.

AM 2023-005 is a Chief Counsel memorandum that "may not be used or cited as precedent" (LAW-106), and the court in Tri-State refused to give weight to a memorandum of that kind for that reason. Q&A-12's rule is the Service's own: an employer is suspended "due to the governmental order that suspended operations of its supplier," and its example is an automobile parts manufacturer. The United States told the Ninth Circuit that the rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier" and 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)"; the FAQ page's "absolutely could not operate without the supplier's product" appears in neither the Notice nor the United States' briefs.¹⁹⁰ The suppliers of this industry were closed by orders that named them: every non-essential plant in Michigan, Pennsylvania, New York, New Jersey, Illinois, Ohio, Washington, California, Massachusetts and Minnesota in March and April 2020; the tier plants abroad by the foreign orders cited as context (Ex. FOR-004; Ex. FOR-005; Ex. FOR-012; Ex. FOR-013); their engineers barred at the border by the entry proclamations on every day from March 13, 2020 through September 30, 2021 (Ex. FED-202; Ex. FED-207; Ex. FED-208); their trucks and crews stopped at the land border by monthly notification (Ex. FED-221; Ex. FED-235); their output diverted by the Defense Production Act orders (Ex. SEC-10-010; Ex. SEC-10-011; Ex. SEC-10-012) and held at the port by the FEMA rule (Ex. SEC-10-004; Ex. SEC-10-009); their protective equipment allocated under the scarce-materials designation (Ex. ECO-A-070; Ex. ECO-A-071). "Attenuated" is not a word in the statute; "due to" is, and Tri-State holds that it means but-for and that the United States' "proximate" formulation "improperly adds words into the statute."

The interconnected-economy section states the answer from the clause's grammar, from Tri-State's definition and from the Notice. "During the calendar quarter" modifies "suspended," not "orders"; a suspension is "[t]he act of temporarily delaying, interrupting, or terminating something," and a delay persists after its cause; Q&A-22 makes a suspension for a day a suspension for the quarter and Q&A-16(4) treats the transition after an order's compulsion as a suspension. The position also misdescribes the record. For the third quarter of 2021 this analysis relies on orders in force on every day of the quarter (the federal general layer; the California, Oregon and Virginia standards; the FRA and DPA instruments and the conveyance order as applied at the ports; Hawaii's and New Mexico's orders), orders issued inside it (the face-covering and exposure-control orders of seven States, the District and thirty metros; the HERO Act activation; the Oregon and Virginia amendments), and the counterparty orders on the industry's suppliers, customers and workforce; the closing paragraph of that section lists the expired instruments on which it does not rest. Where this analysis relies on the restoration period, it does so from the orders' own steps: the last general restart condition came off between April 3 and June 30, 2021 in every closure State (Ex. PA-035; Ex. MI-076; Ex. SEC-10-022; Ex. IL-037; Ex. WA-065; Ex. CA-027; Ex. OR-043; Ex. MN-038), and an operation released from fourteen months of ordered conditions one day to thirteen weeks before a quarter began was suspended in part during that quarter due to those orders. The Service's phrase names an effect and strips it of its cause; the cause was the order.

The gross-receipts prong is section 2301(c)(2)(A)(ii)(II) and section 3134(c)(2)(A)(ii)(II); the suspension prong is clause (I); they are joined by "or." An employer qualifies under either. The United States so acknowledged in Tri-State, and the court held that "[c]onsidering the Gross Receipts Test is by Defendant's admission, another method to qualify under for the credit, the fact an employer can be eligible and affected without partial or full suspension is reasonable," and found "even Defendant's own argument is contradictory" when the United States tried to read the receipts prong as a limit on the suspension prong.¹⁹¹ This analysis is written to clause (I). A manufacturer whose receipts rose while its floor ran under a restart order, its office was ordered home and its shows were cancelled was partially suspended under clause (I) on the words as written; the statute asks about the operation, not the ledger.

This analysis distinguishes the two throughout. The CDC's and OSHA's manufacturing guidance, the CISA essential-workforce list as a federal document, the CMS recommendation of April 7, 2020 that accompanied CMS-1744-IFC (Ex. FED-090) and the Responsible RestartOhio sector checklist are described as guidance and ground no finding standing alone; where a State made such a document binding by order it is relied on through the order (Ohio's Stay Safe Ohio Order, which carries the manufacturing requirements (Ex. OH-019; Ex. SEC-10-048); Kentucky's Healthy at Work Requirements for Manufacturing, Distribution and Supply Chain Businesses (Ex. SEC-10-051), which the Cabinet for Health and Family Services' order of May 9, 2020 and Executive Order 2020-323 made a condition of reopening and remaining open (Ex. SEC-10-053; Ex. KY-017); Minnesota's Executive Order 20-40 requiring a Preparedness Plan (Ex. SEC-10-044); California's State Public Health Officer order of May 7, 2020 making the industry guidance mandatory (Ex. CA-015); the Washington L&I rule making the Phase 1 requirements workplace law (Ex. AGY-ST-LABOR-WORKPLACE-050; Ex. WA-034)). Every instrument on which a finding rests is an executive order, proclamation, public health order, administrative rule, emergency standard, statute, directive or court order with a sanction, and the third-quarter inventory states the sanction for each. An administrative order filed in the Oregon Administrative Rules (Ex. SEC-10-055), a standard codified at 16VAC25-220 (Ex. SEC-10-043), a regulation at 8 C.C.R. § 3205 (Ex. SEC-10-041), a statute at Labor Law § 218-b (Ex. SEC-10-029), a federal order whose violation "constitutes a violation of Federal law" (Ex. FED-020) and a Governor's executive order enforceable as a misdemeanor (Ex. MI-011, § 14) are not recommendations. The United States told the District Court that the qualifying instruments are "orders, proclamations, or decrees from the Federal government or any State or local government" that limited "commerce, travel, or group meetings"; every exhibit relied on is one.¹⁹²

[O]rders, proclamations, or decrees from the Federal government or any State or local government ... limiting commerce, travel, or group meetings.

Doc. 44 at 12

Agreed. An order, in ordinary meaning, is a command from an authority that the addressee must obey on pain of a sanction. Apply that meaning to the instruments listed: Executive Order 2020-21 commanded every Michigan business to send home every worker not necessary to sustain or protect life, on pain of a misdemeanor (Ex. MI-011); Executive Order 122 commanded every New Jersey manufacturer to adopt the protocols of paragraph 3, on pain of the penalties of paragraph 8 (Ex. SEC-10-020); 8 C.C.R. § 3205 commanded every California employer to exclude exposed workers with pay, on pain of citation (Ex. SEC-10-041); the conveyance order commanded every person to wear a mask on every conveyance and every operator to enforce it, on pain of criminal penalty (Ex. FED-020); the land-border notifications commanded Customs and Border Protection to refuse entry to every non-essential traveler (Ex. FED-235); Order 20-03.4 commanded every person in Washington to wear a face covering indoors regardless of vaccination status and Proclamation 20-25.15 commanded every business to refuse admission to the unmasked (Ex. WA-078; Ex. WA-080); OAR 333-019-1025 commanded the operator of every Oregon factory to "ensure employees, contractors, and volunteers comply" (Ex. OR-048). Each is an order in the ordinary sense, from an authority with power over the commerce, travel or meeting it limited, limiting it due to COVID-19. The ordinary meaning of "order" reaches every instrument in the quarter section and excludes none of them.