Veterinary and Animal Services

For every quarter, the quarters section lists the orders in force on the quarter's first and last day, by issuer, date and terms, with exhibit identifiers, and the State, metro and quarter tables on this page tabulate them. For the third quarter of 2021 alone the list runs to the DEA exceptions, the PREP Act designation and the federal importation and scarce-materials orders, the conveyance, testing, entry and border orders, the workplace standards of California, Oregon and Virginia with Oregon's restored appendix written for veterinary clinics, the telemedicine and licensing regimes of California, Pennsylvania, Maine, Kentucky and Hawaii, Delaware's veterinary-facility face-covering and exclusion requirements, the indoor face-covering and exposure-control orders of seven States and the District of Columbia, the reinstatements of more than twenty-five metropolitan areas, the emergencies of thirty-five and then twenty-five jurisdictions, and the school orders of at least eighteen States.²⁰⁴ A form sentence that no orders were in effect is not the "case-by-case" determination the United States described to the District Court, and the National Taxpayer Advocate has recorded that the 2024 letters issued on "a risk-scoring analytic process" and not an examination.²⁰⁵ The sentence describes a quarter that did not occur, and the Service's records, whatever they contain, do not contain the Federal Register, the Oregon Administrative Rules or the California Department of Consumer Affairs' orders.

The word "essential" is not in the statute. The designations that let a veterinary practice operate exempted it from nothing: not from Colorado's, Minnesota's, Oregon's, Michigan's, Indiana's and Utah's suspension of its elective work, not from Minnesota's, New Jersey's, Oregon's and Michigan's PPE inventory, surrender and minimization orders, not from the recommencement conditions, the workplace rules, the waiting-room limits or the face-covering and screening controls named for "veterinary clinic"; the designation was the premise of those conditions, never a release from them.²⁰⁶ The Notice itself provides that an employer so designated "may be considered to have a partial suspension of operations if, under the facts and circumstances, more than a nominal portion of its business operations are suspended by a governmental order" and that an employer operating "an essential business," in the Notice's words, "may, nonetheless, be considered to have a partial suspension of its operations if a governmental order requires the business to close for a period of time during normal working hours"; its own Example 4 finds an essential hospital partially suspended when the order treated its elective procedures as non-essential; and the United States told the District Court that an employer "could be considered to have a partial suspension due to the governmental order if it was required to suspend certain operations for certain purposes."²⁰⁷ A veterinary practice whose elective surgeries were postponed by order, whose waiting room was closed to every customer, whose PPE was inventoried for the State and whose consultations were compelled to telemedicine "remained open" in exactly the sense Example 4's hospital remained open. An employer that remained open under an order that fixed how open it could be was partially suspended by that order.

The statute says nothing of the source or addressee of the order; it asks whether the order limited "commerce, travel, or group meetings." The Notice's own list of qualifying orders includes "A State's emergency proclamation that residents must shelter in place" and "An order from a local official imposing a curfew on residents," both addressed to the public, and the United States quoted that list to the District Court as the statute's meaning and told the Ninth Circuit that a business "may be suspended 'due to' a government order addressing a third party."²⁰⁸ The orders that reached this industry were, moreover, directed at its business operations in terms: "all veterinary facilities must implement a plan to temporarily postpone all in-person non-essential veterinary services"; "all voluntary or elective surgeries or procedures, whether medical, dental, or veterinary, are suspended"; "Animal grooming services cannot operate under any circumstances"; "veterinary employers must provide and ensure the use of personal protective equipment."²⁰⁹ And the stay-at-home orders themselves were directed at this industry's commerce: Michigan permitted travel only for "veterinary services that, in accordance with a duly implemented ... veterinary services postponement plan, have not been postponed," which is an order to the public about which veterinary transactions could occur.²¹⁰ The position rewrites the statute and misdescribes the orders.

"Comparable operations" and "telework" are not in the statute; Tri-State defines a partial suspension as a temporary delay, interruption or termination of a portion of the business, and a practice whose surgical suite was closed by order to elective work, whose waiting room was closed to every customer and whose examinations were converted to telephone consultations had had a portion of its operation terminated for the duration of the order.²¹¹ The Notice's own words say the same. Q&A-15 provides that where "the closure of the workplace causes the employer to suspend business operations for certain purposes, but not others, it may be considered to have a partial suspension of operations due to the governmental order," and its Example 2 treats a physical therapy practice that moves to an online format and can serve some patients remotely, while "employees cannot access specific equipment or tools that they typically use in therapy" and not everyone can be served remotely, as partially suspended; Q&A-16 provides that where the physical work space is so critical that central tasks cannot be performed remotely "this factor alone indicates that the employer is not able to continue comparable operations"; Q&A-17 provides that a compelled modification with more than a nominal effect is a partial suspension.²¹² No spay, dental cleaning, radiograph, fracture repair, bath or boarding run is performed by video. Telemedicine was the modification Michigan's order compelled ("all veterinary services, essential and non-essential, must be performed by telemedicine to the fullest extent possible") that six States made lawful by waiver and that the FDA's enforcement policy accommodated, because the orders had made the examination impossible; it was not a comparable operation the employer chose.²¹³ The comparable-operations sentence with which Q&A-15 opens is not in the statute, has no force of law by the United States' own account, and is not applied here. The position substitutes a word Congress did not write for the one it did.

Q&A-13 addresses an employer that "responds to the lack of demand by suspending some or all of its operations." This analysis relies on no response to demand. It relies on orders addressed to the veterinary facility itself (the suspension, recommencement, PPE, workplace, waiting-room, face-covering and licensing orders of the layers and quarters sections), and it relies on the orders on the industry's customers, suppliers, schools and counterparties as orders limiting commerce, travel and group meetings under the statute's text, under Q&A-12's logic and under the United States' representation that a third-party order counts.²¹⁴ A stay-at-home order on the customer base is itself an order limiting commerce, and the commerce it limited was this industry's: the customer whom Michigan permitted to travel only for un-postponed veterinary services was this industry's customer, and the order that so confined him was an order about this industry's transactions. Q&A-13's own example states that the order it describes "limits travel"; Q&A-13 cannot be reconciled with Q&A-10's listing of the shelter-in-place proclamation, with Q&A-12's supplier rule or with the United States' third-party representation; and its extension from "an essential business that is not required to close its physical locations," FAQ 32's words, to every employer and to any "reduction in demand" was made on March 1, 2021, eleven months after the second quarter of 2020.²¹⁵ The ground does not describe an employer whose surgeries, waiting rooms, grooming tables and PPE were ordered, and the Service's invocation of it against this industry misdescribes both the orders and the industry.

A postponement plan adopted because Executive Order 2020-34 required it, a PPE inventory filed because Executive Order 20-16 required it, an elective procedure conditioned because Public Health Order 20-29 required it, a grooming appointment taken curbside "in a crate" because Kentucky's Healthy at Work requirements required it, and a face covering on every customer because the Secretary of Health of Pennsylvania required it, as one of the exposure controls the Commonwealth placed on its health-care settings, are not voluntary. Q&A-14 by its own terms reaches only a suspension "not due to a governmental order"; every modification described here is traced to an order with an exhibit identifier.²¹⁶ Where an employer adopted a nationwide policy to comply with the orders of the jurisdictions that bound it, Q&A-20 makes it eligible "with respect to all of its operations in all locations."²¹⁷ Tri-State held that "the required protocols and procedures to comply with the Proclamation" were caused by the order and that "Plaintiff was required to make these changes to ensure compliance with the Proclamation."²¹⁸ A modification traced to an order with an exhibit identifier is not voluntary, and the position that it was describes an employer this analysis does not describe.

The United States and the District Court have defined the employer Q&A-14 excludes as one "not being ordered to do so" and one that "chooses not to" continue comparable operations.²¹⁹ No veterinary practice, grooming salon or shelter in the principal States answered that description in any of the six quarters. The reopening orders permitted operation only on conditions with the force of law: Michigan's postponement plan and workplace safeguards, Colorado's "Veterinary Facilities" regime and workplace measures, Oregon's condition of compliance with Health Authority guidance declared a public health law, Minnesota's Preparedness Plan, Pennsylvania's "provided that the businesses fully comply" clause and Texas's occupancy command, each backed by a penalty the order recited or, for Pennsylvania, 71 P.S. § 1409 and 35 P.S. § 521.20(a) supplied. The standing statutes commanded the same conduct independently: the communicable-disease control acts and their offenses, the emergency acts' penalties, the workplace-safety duties of Texas, Michigan, Oregon, Minnesota, California, Pennsylvania and Virginia, and the general duty clause, 29 U.S.C. § 654(a)(1), enforced by citation from September 2020. The legislatures then fixed the standard of care as compliance with governmental standards, guidance and protocols, Texas for every action commenced on or after March 13, 2020 and Michigan for every exposure after March 1, 2020.²²⁰ The safe-workplace statute had no COVID-19 content until the health authorities said what a safe workplace required; the curbside protocol, the screening at the door, the distanced waiting room and the face covering on every person who entered were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation, 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.²²¹ A statute that commands conduct is an order from an appropriate governmental authority, and the Service's premise fails wherever a command reached the employer; in this industry one reached every employer in every State and every quarter, as the standing-duties subsection of the layers section shows.

The ten percent figure is, in the United States' words, "not determinative," "[e]ffectively ... a safe harbor," "not an eligibility requirement," "a quintessential safe harbor," "a safe harbor rather than a hard floor"; the District Court held it "is not an exclusionary cut-off point"; and 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 reading it as a requirement "would read requirements into the statute that do not exist."²²² The showing for this industry exceeds the safe harbor many times over as a matter of the orders' own terms: the elective and non-essential clinical line, the largest revenue line of a veterinary practice, was suspended in terms in six States; the grooming line was closed in at least fourteen; the waiting room was closed everywhere; and the AVMA's April 2020 survey found nearly every practice reporting a decline in revenue, close to a fifth seeing only emergency cases and about five percent seeing no customers at all.²²³ The position applies as a floor a figure the United States has told two federal courts is not one, and a figure that did not exist until March 1, 2021.

The modifications described here are the postponement of elective surgery, the closure of the waiting room, the conversion of the examination to telemedicine, the inventory and surrender of PPE, the closure of the grooming room and its reopening by appointment and curbside, the twenty-five and ten percent occupancy regimes of the winter, and the workplace standards of four States; the face-covering orders of July through September 2021 are cited as what they are: workplace infection-prevention and exposure-control requirements from appropriate governmental authorities, enforced by fine, that conditioned every premises in the States and cities that issued them and carried the entry, business-enforcement and COVID-Safe-Practices conditions their texts imposed. Q&A-18 itself lists "requiring services to be performed only on an appointment basis (for businesses that previously offered walk-in service)" and "changing the format of service" among the modifications "required by a governmental order as a condition of reopening," and provides that a modification "that results in a reduction in an employer's ability to provide goods or services in the normal course of the employer's business of not less than 10 percent will be deemed to have more than a nominal effect"; the United States told the District Court that "employees having to wear face masks may impact business operations"; and Tri-State held that "the required protocols and procedures to comply with the Proclamation" were suspensions the order caused and refused the argument that they were nominal.²²⁴ Q&A-18's categorical sentence that mask requirements "will not result in more than a nominal effect" is a factual conclusion stated as a rule, with no record, first published March 1, 2021, and it contradicts Q&A-18's own first paragraph; it has no force of law and is not applied here. A veterinary clinic at ten percent occupancy is not a modification with a nominal effect; it is a ninety percent closure. A grooming salon confined to appointments, with the customer in the car and the dog in a crate, is not a premises with a sign on the door; it is a salon operating at the throughput the order allowed.

This analysis relies on no bare declaration as a suspending order. Each instrument in the layers and quarters sections limited commerce, travel or group meetings in terms. Where an emergency declaration is cited, it is cited as the instrument under which those orders were issued and continued, or as proof of a period, which the Notice's own text allows: Q&A-10 excludes a declaration only "if it does not limit commerce, travel, or group meetings in any manner," and Hawaii's proclamations, which are both declarations and rules "that shall have the force and effect of law," and Kentucky's joint resolutions, which both extend the emergency and extend the Board of Veterinary Examiners Order, limit commerce in terms.²²⁵ The ground answers an argument this analysis does not make.

Chief Counsel memoranda "may not be used or cited as precedent," by their own legend, which Tri-State quoted in declining to rely on the Chief Counsel memorandum the United States offered there.²²⁶ The suppliers of this industry were closed or conditioned by order with a date and an exhibit identifier: the distributor's respirators by the Defense Production Act orders, the scarce-materials designation and the FEMA export rule; the veterinary facility's own PPE by the inventory, surrender and minimization orders of Minnesota, New Jersey, Oregon and Michigan; the importer's dogs by the CDC's suspension; the plant of the agricultural customer by Executive Order 13917 and the outbreak closures; the school of the technician's child by the closure orders of every State.²²⁷ Nothing here is attenuated. The United States told the Ninth Circuit that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier," and told the District Court that an employer is eligible where its operations are suspended "because of the supplier's inability to deliver"; Q&A-12's words contain no "narrow, limited exception," no requirement that the order apply to the employer and no alternate-supplier element, and that memorandum's scenarios (a jurisdiction that "lifted all orders related to COVID in May 2020") describe no State in the Library.²²⁸ Causation is but-for on the United States' own agreed definition: absent the allocation rule, no law kept the respirators from the veterinary distributor's shelf.²²⁹ The position describes an attenuated chain this analysis does not rely on; a federal allocation order on the very goods a surgery requires is not a supply-chain effect, and a Chief Counsel memorandum that cannot be cited as precedent is not the statute.

For the third quarter of 2021 the orders had not lifted: subpart B of the third-quarter section lists, with dates, the orders in force on July 1 and September 30, 2021, and the closing paragraph of that section (What this analysis does not claim was in force) names the expired instruments on which the proof does not rest. Where the position means that a suspension compelled by an order that expired on June 30 ended at midnight, it misreads the clause, which asks whether the operation "is fully or partially suspended during the calendar quarter," and it contradicts Tri-State's definition of a suspension as a "delay," Q&A-22's whole-quarter rule and Q&A-16's transition rule.²³⁰ The Chief Counsel memorandum on which the position rests asks whether a lifted order "constitute[s] a governmental order in subsequent calendar quarters"; the statute asks a different question, whether the operation was suspended during the quarter due to orders, and that memorandum "may not be used or cited as precedent."²³¹ An Oregon veterinary clinic released from Executive Order 20-22 at 12:01 a.m. June 30, 2021 after 464 days under condition, and placed under a restored appendix written for veterinary clinics on August 13, 2021, was not operating normally on July 1. The position mistakes the date an order lapsed for the date the suspension it compelled ended; the clause asks about the second.

The gross-receipts prong is not relied on. The statute makes an employer eligible on either prong, and the United States agreed in Tri-State that the gross-receipts test is "another method to qualify," on which the court held that "the fact an employer can be eligible and affected without partial or full suspension is reasonable" and that the prong "does not make the Gross Receipts Test superfluous with the plain language interpretation of 'partial suspension' but instead logical within the scope of the act."²³² The suspension prong asks about operations, not revenue, and it is satisfied in every quarter. The ground answers a prong this analysis does not invoke; Congress joined the two prongs with "or."

Every instrument this analysis relies on as a suspending order is an executive order, proclamation, public health order, emergency rule, regulation, statute, joint resolution, administrative order or licensing order with the force of law, issued under a recited statutory or constitutional power and enforced by misdemeanor, civil penalty, citation, license discipline, refusal of boarding or refusal of entry: Michigan's Executive Order 2020-34 ("a willful violation of this order is a misdemeanor"); Colorado's D 2020 009 and PHO 20-29; Minnesota's Executive Orders 20-17, 20-16 and 20-51 under Minn. Stat. § 12.45; Oregon's Executive Orders 20-10 and 20-22 under ORS 401.990 and Oregon OSHA's OAR 437-001-0744 under ORS 654.071; Virginia's 16VAC25-220 under Va. Code § 40.1-49.4; Cal/OSHA's section 3205 under Labor Code § 6317; the DCA waivers under Government Code § 8571; the Pennsylvania Acts and the Kentucky joint resolutions; Hawaii's proclamations "as rules that shall have the force and effect of law"; the CDC's conveyance order under 18 U.S.C. §§ 3559 and 3571 and its dog-importation suspension under 42 U.S.C. § 264; the face-covering orders of every State under its criminal code.²³³ Where this analysis cites a guidance document, it says so and treats it as what it is: FDA's Guidance for Industry #269 is guidance by its own legend and is cited as the federal accommodation to the State orders and as dated proof of the compelled substitute; the CISA list is advisory by its own words and is cited only as the text the State orders incorporated, the binding instrument being the State order; the AVMA's pages are the industry association's account of the period and are never treated as orders; California's face-covering guidance of July 28, 2021 is a recommendation and is cited as the text the county orders made mandatory. The State Public Health Officer's document of June 18, 2020 carries the same title and commands in terms ("People in California must wear face coverings"), naming the veterinary clinic; it is cited as the requirement it states, not as a recommendation.²³⁴ The Notice itself provides that whether an instrument is a governmental order "is determined without regard to the level of enforcement."²³⁵ An instrument enforced by misdemeanor, citation, license or refusal of entry is not a recommendation, and the position that it is misdescribes every instrument this analysis names as an order.

Agreed. An "order" is "[a]n authoritative indication to be obeyed; a command or direction," and to order is "to give an order to : command"; the United States agreed in Tri-State that the clause is read by "plain meaning," and Chief Counsel's own dictionary work defines "order" as "a command or mandate delivered by a government official."²³⁶ Every instrument in the determinations of the quarters section is a command from a competent authority to do or refrain from doing something on pain of sanction: postpone your elective surgeries; inventory your PPE and send the list to the State; perform your services by telemedicine to the fullest extent possible; do not operate your grooming service under any circumstances; mask every person who enters your clinic; exclude your exposed and infected employees from the workplace; provide and ensure the use of personal protective equipment. That is the ordinary meaning, and it is satisfied.

The Service is free to disagree about the weight of these instruments. It is not free to say they did not exist.