The interconnected economy and the broken leg
Two propositions complete the analysis. First, the orders that reached this industry's counterparties are orders in the statute's words, and the United States has admitted as much. Second, an operation that an order terminated in the spring of 2020 and the winter of 2020-21 was not restored to its ordinary course on the day the last capacity step took effect; the restoration the orders' own steps compelled ran into the third quarter of 2021, and the clause's grammar reaches it.
The interconnected economy
The text and the admission
The Suspension Clause requires "orders ... limiting commerce, travel, or group meetings," and describes the orders by their object, not by their addressee. The United States told the Ninth Circuit 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)," and the Notice's Q&A-12 applies exactly that logic to a manufacturer whose supplier was closed by another jurisdiction's order.154 The logic does not stop at suppliers. An order that closes a hotel closes the banquet business inside it; an order that empties an office tower empties the lunch counter across the street; an order that closes a school removes the line cook whose child was in it; an order that requires a face covering on every bus governs the dishwasher's commute; an order that quarantines every arriving traveler removes the tourist from the dining room.
The mechanisms
Six mechanisms carried the counterparty orders to this industry, and each is documented with instruments in the layers section above. Supply chain and borders: Executive Order 13917 on meat and poultry plants; Michigan's testing order on food processors; the land-border notices confining Canadian and Mexican crossings to essential travel through the quarter and to October 21, 2021 and beyond; the entry proclamations to November 8, 2021; the pre-departure test order; the alcohol wholesalers' back-order rules; and the Census Bureau's finding that 51.4 percent of accommodation and food-service establishments reported domestic supplier delays in July 2021 (Ex. FED-073; Ex. MI-042; Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-207; Ex. FED-208; Ex. FED-042; Ex. AGY-ST-ALCOHOL-031; Ex. LAW-243). Workforce, schools and child care: the school closures of March 2020 and the 2020-21 remote year; the federal leave mandate's school-closure trigger; the 2021 school face-covering orders (airborne-transmission controls on the classroom); the quarantine standing orders; the eviction moratoria on the workforce's housing (Ex. NJ-002; Ex. MI-002; Ex. FED-170; Ex. NJ-055; Ex. IL-042; Ex. NV-042; Ex. KY-053; Ex. FED-025; Ex. FED-026). Travel, tourism and gatherings: Hawaii's quarantine of every arrival, New York's travel advisory, the territories' arrival rules, the gathering caps that cancelled the convention, the wedding and the festival (the Library's meetings collection; Ex. ECO-C-010; Ex. ECO-C-011; Ex. NY-006; Ex. AGY-TERRITORIES-012; Ex. MN-032; Ex. OH-038). Courts and public offices: the judicial emergency orders that suspended in-person proceedings, evictions and collections and the licensing offices that closed (Ex. ECO-C-070; Ex. TX-040; Ex. VA-039; Ex. WI-026; Ex. AGY-ST-ALCOHOL-022). Transit: the federal conveyance order and the local rider caps and face-covering rules (exposure-control conditions on the commute) (Ex. FED-020; Ex. FED-051; Ex. MET-STL-041; Ex. MET-BOS-090; Ex. MET-DFW-094). Health care as counterparty: the visitation, staff-testing and vaccination orders on the hospitals, nursing homes and campuses whose food service the industry's contractors run (Ex. FED-080; Ex. ECO-B-083; Ex. ECO-B-030; Ex. MD-058; Ex. MET-PHL-021). The Federal Reserve's Beige Books of May 27, 2020, December 2, 2020 and September 8, 2021 describe the same mechanisms in the central bank's words: "mandated closures," "mandated restrictions (recent and prospective)," "more school and plant closings," "supply disruptions and labor shortages."155
The counterparty orders as orders
Each instrument named above is an order, proclamation, rule or statute from an authority with power over the commerce, travel or meeting it limited. Under the statute's text, under Q&A-12's logic and under the United States' admission, an order on a supplier, a customer, a venue, a school, a carrier or a court that interrupted a restaurant's operation is an order "limiting commerce, travel, or group meetings" due to which that operation was partially suspended. The Service's Chief Counsel memorandum on supply chains, which requires that the supplier itself have been closed by order, adds a condition Congress did not write and describes a case (the closed supplier) that is one instance of the rule, not its limit; the United States' own brief states the rule without that condition.156
The broken leg
The grammar
The clause makes an employer eligible where the operation "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended": it asks when the suspension existed, not when the order was signed or when it expired. Congress did not write "due to orders in effect during the calendar quarter," and it did not write "for so long as the orders remain in force." Where an order terminated an operation and the operation had not returned to its ordinary course when the quarter opened, the operation was "partially suspended during the calendar quarter," and it was so "due to" the order, because but for the order the interruption would not have occurred.
Tri-State's definition and but-for holding
The United States agreed, and the court held, that a suspension is "[t]he act of temporarily delaying, interrupting, or terminating something," and that a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business."157 A delay is a suspension. An order that closed a dining room for ten weeks and reopened it at 25 percent delayed the return of three-quarters of its seats; an order that closed a banquet hall for a season delayed every event booked into the next; an order that closed bars for eleven weeks delayed the rehiring and retraining of the bartenders who had left. The court held that causation is but-for and that the United States' "proximate, independent and sufficient cause" gloss "improperly adds words into the statute."158 But for the order, the dining room would not have been emptied, the staff would not have been dismissed, the inventory would not have been discarded and the events would not have been cancelled; the restoration of each is a consequence of the order and of nothing else.
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."159 Q&A-16 recognizes that a change compelled by order carries a transition period ("some adjustment period is expected") and provides that where the transition takes more than about two weeks ("a significant delay (for example, beyond 2 weeks)") the employer's operations "may be deemed subject to a partial suspension during that transition period."160 The Service's own construction therefore treats a compelled transition of more than two weeks as a suspension; the restoration described below, measured from the orders' own phase steps, ran for months.
What the orders compelled this industry to dismantle
The closure orders of March 2020 compelled every full-service restaurant, bar and caterer in the country to dismiss or furlough the staff who served the dining room and the bar (the Bureau of Labor Statistics counted 5,491,300 jobs lost in food services and drinking places in April 2020 alone), to discard or return perishable inventory, to cancel every booked event, to suspend contracts with linen, produce, seafood and beverage vendors, to close or convert the premises, and to build, from nothing and under the regulators' conditions, a takeout and to-go alcohol operation.161 The winter orders of November and December 2020 compelled the same dismantling a second time in fourteen States and the largest metros. The bar closures of June and July 2020 in Texas, Florida, Arizona, California, Louisiana, Michigan and Nevada compelled it a third time for the bar function.
How long the orders' own steps took to restore it
The restoration was governed by the orders, and the orders fixed its pace. A dining room closed in March 2020 was permitted to reopen at 25 percent in Texas on May 1 and Florida on May 4, at one-third in Arkansas on May 11, at 50 percent in most States between May 15 and June 22, and at 75 percent in Texas on June 12, then was cut back to 50 percent in Texas and Arizona and closed again in California in June and July (Ex. TX-021; Ex. FL-022; Ex. AR-051; Ex. AZ-024; Ex. CA-010). It was cut to 25 percent in Pennsylvania on July 16 and New Jersey on September 4, closed again from November 18 in Washington, November 20 in Minnesota and Illinois, December 6 in Southern California and the San Joaquin Valley (and by December 17 in Greater Sacramento and the Bay Area), December 12 in Pennsylvania and December 14 in New York City, reopened at 25 percent in January and February 2021, stepped to 35, 40 and 50 percent in February and March, and reached its last step between May 19 and June 30, 2021 in the States that hold most of the industry's establishments (Ex. PA-016; Ex. NJ-034; Ex. WA-047; Ex. MN-032; Ex. IL-031; Ex. CA-020; Ex. PA-028; Ex. NY-039; Ex. NY-040; Ex. NJ-042; Ex. MA-043; Ex. NY-054; Ex. PA-036; Ex. MA-048; Ex. CA-017; Ex. MI-076; Ex. WA-064; Ex. OR-043). A dining room released from its last capacity cap on May 19, May 31, June 15, June 22 or June 30, 2021 had operated at full capacity for between one day and six weeks when the third quarter of 2021 began, and in that interval it had to rehire and retrain a staff that the orders had dispersed fifteen months earlier, rebuild an inventory and a vendor book, and rebook a banquet calendar that the gathering caps had emptied for two seasons. An employer whose operation was ordered suspended through June 30 was not walking normally on July 1.
What was still in force when the general restrictions ended
The restoration did not proceed under no orders. When the last statewide caps outside Hawaii ended on June 30, 2021, the federal conveyance order, the emphasis program, the entry and border orders, Hawaii's regime, the alcohol regulators' permit conditions, the State workplace standards, New York's food-service employee face-covering rule and HERO Act, New Jersey's worksite rules and Delaware's and Rhode Island's dining duties were in force, and within seventeen days Los Angeles County had reinstated universal indoor face coverings, an airborne-transmission control on staff and patrons alike (July 17), within a month New Orleans and the District of Columbia (July 31), within five weeks the Bay Area and Louisiana (August 3 and 4), within six weeks Hawaii's statewide restaurant order (August 10), and within eight weeks Philadelphia (August 12), Oregon (August 13), New York City's proof-of-vaccination rule (August 17), Chicago (August 20) and Washington (August 23).162 The continuing suspension of the third quarter of 2021 therefore rests on four independent footings: the orders in force on every day of the quarter; the orders issued inside it; the license conditions that outlasted the general restrictions; and the restoration compelled by the lifted orders' own phase steps. Each footing is independently sufficient, and the finding for the third quarter of 2021 above rests on all four: the first two on the instruments in force, the third on the license conditions the regulators kept in force, the fourth on the statute's grammar and on Tri-State's definition of a suspension as a delay.