The interconnected economy and the broken leg
This industry sells the movement of other people to other people's places, and every order that confined a person, closed a school, capped a gathering, quarantined a traveler, closed a border or fixed an airline's schedule was an order limiting this industry's commerce in terms. The statute asks whether the operation was "partially suspended during the calendar quarter due to orders," not whether the order named the employer, and not whether the order was still in force on the quarter's last day. This section applies two propositions to the industry: the mechanisms by which orders on counterparties suspended its functions, and the restoration arithmetic that fixes, from the orders' own phase steps, how long the dismantled functions took to return and what was still in force when the general restrictions ended.
The mechanisms
Travel, tourism and gatherings
The statute's three nouns are this industry's three products. An order "limiting ... travel" is an order limiting the sale of a seat; an order "limiting ... group meetings" is an order limiting the charter that carries the group; an order "limiting commerce" at the destination (the casino, the convention center, the theme park, the stadium, the cruise terminal) is an order limiting the run that ends there. The Notice lists a shelter-in-place proclamation and a curfew as orders that count and makes an employer eligible where a supplier's suspension by order suspends its own operation; the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."93 The charter operator's supplier is the venue and the school; the taxi's supplier is the airline and the hotel; the travel agency's supplier is the cruise line, the airline and the border the United States' own notifications closed. Each was closed or limited by order, and the Notice's own logic makes the effect on this industry a suspension by order. The gatherings themselves, from the industry's own trade shows to the conventions, tournaments, festivals, seasons and school calendars its charters served, are collected with the venue orders that governed each in the Library's meetings collection.
Borders and the inbound traveler
From March 2020 to November 8, 2021, the United States suspended entry from thirty-three countries, closed the land borders to tourism, suspended visa issuance and, from January 26, 2021, tested every arriving air passenger. The inbound tour, the receptive operator's group, the cruise-transfer fleet's passengers and the international student pilot were removed by federal order, and the foreign orders on the other side of the same border (the foreign orders, above) are the context that fixes the same passengers' inability to leave home.94
Workforce, schools and child care
The drivers, chauffeurs, deckhands and mechanics of this industry cannot work from home; their children's schools and child-care centers were closed by order in every State in the spring of 2020 and were remote or hybrid by order in the largest States through the 2020-21 year; every quarantine order removed an exposed worker for ten to fourteen days; the FFCRA mandate made the employer the payer of the leave those orders generated; and in the third quarter of 2021 the school-worker orders of eight jurisdictions reached the contractor's drivers by name.95
Courts, public offices and credentialing
The industry's licenses are issued at offices that closed by order in March 2020 and ran on appointment and extension regimes into 2021, and its credentials were extended by federal and State instruments whose recitals record that the examination functions could not be performed. The FMCSA's waiver chain as the States recite it, the Coast Guard's examination-center closure and credential extensions, the FAA's SFAR 118 series and the motor-vehicle offices' closures are the record.96
Transit and the commute
The transit systems that carry the industry's workers ran reduced schedules under the stay-at-home orders, rear-door boarding and fare suspensions under the State orders, and, under the State and federal orders, the airborne-transmission control of face coverings on every rider; the charter and shuttle fleets that connect to rail ran under FRA Emergency Order No. 32's regime on the rail side from March 1, 2021.97
Health care as counterparty
The medical certificates every commercial driver, pilot and mariner must hold are issued by examiners whose offices were closed or limited by the elective-care and health-care orders of 2020, and the DOT extended medical-certificate validity for that reason; the industry's own quarantine and testing obligations ran through the health system's capacity.98
The counterparty orders as orders
An order on a counterparty is an order "limiting commerce, travel, or group meetings" in the statute's words, and the statute says nothing of the source or addressee of the order. The Notice's own list includes orders addressed to the public (shelter-in-place proclamations, curfews) and its supplier rule (Q&A-12) makes an order on a third party the cause of the employer's suspension; the United States has admitted the point in the Ninth Circuit and has represented that the Notice narrows nothing; and Tri-State holds that but-for causation is the test.99 For this industry the counterparty's order is not an indirect cause. The school closure order is addressed to the school and operates on the bus: there is no route without the school day. The gathering ban is addressed to the host and operates on the coach: there is no charter without the gathering. The quarantine order is addressed to the traveler and operates on the tour: there is no tour when arrival is a fourteen-day confinement. The No Sail Order is addressed to the cruise line and operates on the transfer fleet and the travel agency: there is no transfer and no commission without the sailing. The DOT service order is addressed to the airline and operates on the airport shuttle and the fixed-base operator: the network the order fixed is the traffic they served. In each case, but for the order, no law prevented the function; with the order, the function had no object.
The broken leg
The grammar
The clause reads "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders." The adverbial phrase "during the calendar quarter" modifies "suspended," the predicate; it does not modify "orders." Congress did not write "orders in effect during the calendar quarter," and the Suspension Clause contains no requirement that an order be in force on any particular day of the quarter, still less on its last day. The question is whether the operation was suspended in part during the quarter because of orders, and an operation that was ordered dismantled in one quarter and was still being rebuilt under the orders' own phase steps in the next was suspended in part during the next.100
The definition
Tri-State holds, on the United States' agreed definition, that a suspension is "[t]he act of temporarily delaying, interrupting, or terminating something" and a partial suspension "a temporary delay, interruption, or termination of a portion an employer's business."101 A delay is a suspension. An operation that could not resume its 2019 schedule because the orders had removed its passengers, its routes, its credentials and its drivers, and permitted their return only by steps, was delayed by the orders; the delay is the suspension; and on Tri-State's but-for holding the orders that compelled the dismantling and fixed the steps of return are its cause.
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."102 Q&A-16's fourth factor recognizes that a suspension an order caused persists after the order operates: "some adjustment period is expected," and "a significant delay (for example, beyond 2 weeks) in moving operations to comparable telework" is itself "a partial suspension during that transition period."103 The Service is bound by both.
What the orders compelled this industry to dismantle
From the orders themselves: the charter calendar (every trip cancelled by gathering ban and school closure in the spring and summer of 2020); the school-route contract (idled by closure in the spring of 2020 and halved by remote and hybrid orders in 2020-21, with the driver roster idled for the whole closure and carried under the payment statutes of New Jersey, Pennsylvania and Connecticut where those statutes reached); the airport and cruise-transfer queue (removed by the No Sail Order, the proclamations and the DOT network order); the ferry schedule and route network (the Canadian route closed by border notice; the Ocracoke season cancelled; the Puget Sound and Staten Island sailings halved); the flight school's checkride and medical calendar (run on SFAR 118 extensions for a year); the travel agency's booking pipeline (the cruise product removed for fifteen months; the foreign product for twenty months; the domestic destination a quarantine); the driver bench (untestable in closed offices; extended on waivers; then tested and vaccinated by order).104
The arithmetic of the orders' own steps
The orders fixed the pace of return, and none permitted return in a day. The cruise sequence: No Sail from March 14, 2020; Conditional Sailing Order from October 30, 2020 with crew testing, then simulated voyages (first in June 2021), then restricted revenue voyages under port agreements and CDC certification, with the Order running to November 1, 2021 and extended to January 15, 2022: a transfer fleet that carried its first restored cruise passengers in July 2021 carried them under an order that had governed it for sixteen months and would govern it for six more.105 The border sequence: land borders closed to tourism March 21, 2020, renewed monthly nineteen times, opened to vaccinated tourists November 8, 2021: the cross-border tour product was restored at a pace of zero through the whole of the third quarter of 2021.106 The entry sequence: Schengen, United Kingdom and Ireland suspended March 13 and 16, 2020, continued January 25, 2021, revoked November 8, 2021; India added May 4, 2021: the European and Indian inbound products were restored on no day of the period.107 The airline sequence: minimum-service orders April 7 to September 30, 2020, January 15 to March 31, 2021 and May 14 to September 30, 2021: the network the airport fleet and fixed-base operator served was the network the Secretary ordered, through the last day of the period.108 The school sequence in the largest States: closed March 2020; remote or hybrid by order for the 2020-21 year (California's counties by tier; Illinois's fifty per space; New York's DOH plans and zone closures; Washington's phased conditions from December 16, 2020; New Jersey's EO 175 hybrid; Kentucky's remote from November 23, 2020; Nevada's hybrid with buses at sixty-six percent from February 18, 2021; Oregon's hybrid from March 29, 2021); in person by order from March 2021 under face-covering rules; and the 2021-22 year opened in August and September 2021 under the infection-prevention regime of face coverings, quarantine, exclusion and driver testing: the school-route function ran at an ordered fraction for four quarters and restarted under new orders in the sixth.109 The Hawaii sequence: quarantine of every arrival from March 26, 2020; interisland quarantine to June 15, 2020 and again August 11, 2020 to June 14, 2021; test exception October 15, 2020; vaccination exceptions May through July 2021; face coverings, quarantine and caps through the third quarter of 2021 and beyond: the Hawaii product recovered only at the pace Safe Travels allowed and under caps that ended December 1, 2021.110 The credentialing sequence: motor-vehicle offices closed March 2020, reopened by appointment May through July 2020 (New Jersey July 7; California June 11; Indiana May 11; Nevada June 15; Wisconsin March 23 by appointment), with skills tests suspended and the FMCSA waiver chain running March 24, 2020 to November 30, 2021 because, in the agency's words, COVID-19 "has impacted SDLAs and their operating statuses": the driver bench could not be rebuilt at the pace the routes required, which is why Rhode Island suspended its vehicle-type statute on August 26, 2021.111 The ferry sequence: the Anacortes-Sidney route closed March 20, 2020 and not reopened in the period; the Ocracoke Express season cancelled April 28, 2020, restored capped in 2021; Puget Sound service halved March 29, 2020, weekend service restored August 22, 2020, riders asked to limit travel to essential trips December 18, 2020; the Hatteras-Ocracoke run cut from sixty to forty-four round trips September 3, 2021.112
What was still in force when the general restrictions ended
When California ended its general restrictions June 15, 2021, New York June 25, Illinois June 11, Michigan June 22, Washington and Oregon June 30, New Mexico July 1 and Rhode Island July 6, the following remained in force on this industry's functions: the federal conveyance order and its TSA directives on every vehicle and terminal; the Conditional Sailing Order; the entry proclamations, the testing order and the land-border notifications; DOT Order 2021-4-13; FRA Emergency Order No. 32; the Coast Guard's port and vessel bulletins and credential extensions; Hawaii's and Kansas's quarantines; the State transit and for-hire face-covering retentions of California, Kentucky, New Jersey, Illinois, Washington, North Carolina, Louisiana and Rhode Island; the State workplace standards of California, Oregon and Virginia; the emergency declarations of thirty-five jurisdictions; and, from late July 2021, the reinstated indoor face-covering, facility and vaccination-proof orders of twenty-nine jurisdictions and the 2021-22 school orders of the largest States. The third quarter of 2021, subpart B, states each with its dates. The instruments the States styled general restrictions ended on those dates; every instrument listed in this paragraph was in force on the day each State's general restrictions ended, and the federal order that governed every conveyance of this industry was renewed on September 14, 2021.113
The analogy, once
An employer whose operation was ordered suspended through June 30 was not walking normally on July 1. The orders that suspended this industry's operation in March 2020 also fixed the terms of its return: the phase steps, the capacity percentages, the test-or-quarantine exceptions, the simulated voyages, the minimum schedules, the appointment regimes and the waiver chains. The quarter in which the last step took effect is a quarter in which the operation was still suspended in part because of the orders, and for this industry that quarter had not arrived on September 30, 2021.