The Statute

The clause controls

The operative text of the Employee Retention Credit's governmental-orders test (the "Suspension Clause") runs to fewer than fifty words (CARES Act § 2301(c)(2)(A)(ii)(I), 134 Stat. 281, 348, quoted below), Congress enacted it four times without changing a word of it, and it is read as written. It asks whether the operation of a trade or business was fully or partially suspended during the calendar quarter because of orders from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19. It does not ask who the order was addressed to, whether the employer was "essential," whether the employer could work remotely, whether the order reached the employer's customers or suppliers rather than the employer, whether the employer's compliance was "voluntary," or whether the affected portion of the operation crossed a numerical threshold. The United States, as litigant, has told the Western District of Michigan so in terms:

The statute does not define order, partial suspension, or the causation requirement. The parties in this case disagree about all three of these parts of the ERC.

Defendant's Opposed Motion to Stay Case at 3, County of Barry v. United States, No. 1:25-cv-01099 (W.D. Mich. Sept. 4, 2026), ECF No. 21

And it has told the District of Arizona and the Ninth Circuit that Notice 2021-20 (the "Notice"), which supplies those definitions, has no force of law.¹ Every gloss the Internal Revenue Service (the "Service") applies is therefore a gloss, and the United States has said so (Doc. 44 at 19, 24). This analysis states the statute's answer to each element, in the statute's order, with the dictionaries, the canons and the two federal decisions that have construed the words. The decisions that have read the clause otherwise are answered at The Law: the cases.

The four enactments

Section 2301 of the CARES Act, Pub. L. 116-136, 134 Stat. 281, begins at 134 Stat. 347 under the heading "EMPLOYEE RETENTION CREDIT FOR EMPLOYERS SUBJECT TO CLOSURE DUE TO COVID-19"; the Suspension Clause sits at 134 Stat. 348, and § 2301(m) at 134 Stat. 351 applies the section "to wages paid after March 12, 2020, and before January 1, 2021."² The Taxpayer Certainty and Disaster Tax Relief Act of 2020, Pub. L. 116-260, div. EE, extended the credit to wages paid before July 1, 2021 (§ 207(a)(1), 134 Stat. at 3062), raised the rate to 70 percent (§ 207(b)) and made its clarifications effective "as if included in the provisions of the CARES Act" (§ 206(e), 134 Stat. at 3061); neither section touched the Suspension Clause.³ The American Rescue Plan Act of 2021, Pub. L. 117-2, § 9651, 135 Stat. 4, 176, added I.R.C. § 3134, whose heading at 135 Stat. 177 repeats the CARES Act title and whose Suspension Clause reappears word for word at 135 Stat. 177, for wages paid after June 30, 2021 and before January 1, 2022 (§ 3134(n), 135 Stat. at 182).⁴ The Infrastructure Investment and Jobs Act, Pub. L. 117-58, § 80604, 135 Stat. 429, 1341, captioned "TERMINATION OF EMPLOYEE RETENTION CREDIT FOR EMPLOYERS SUBJECT TO CLOSURE DUE TO COVID-19," struck "January 1, 2022" and inserted "October 1, 2021 (or, in the case of wages paid by an eligible employer which is a recovery startup business, January 1, 2022)," applicable "to calendar quarters beginning after September 30, 2021."⁵ The third quarter of 2021 was left in place. Pub. L. 119-21, § 70605 (July 4, 2025), bars allowance after its enactment of any § 3134 credit not claimed "on or before January 31, 2024," rewrites § 3134(l) to a six-year assessment period and amends § 6676(a) to reach "income or employment tax"; every operative clause of subsections (a) through (e) is keyed to § 3134, and nothing in it amends CARES Act § 2301.⁶

The clause and its elements

In every enactment an eligible employer is one for which:

the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19).

CARES Act § 2301(c)(2)(A)(ii)(I), 134 Stat. 281, 348; I.R.C. § 3134(c)(2)(A)(ii)(I), 135 Stat. 4, 177

The clause has seven elements, and this analysis takes them in the statute's order.⁷

1. "orders"
2. "from an appropriate governmental authority"
3. "limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes)"
4. "due to the coronavirus disease 2019 (COVID-19)"
5. "the operation of the trade or business ... fully or partially suspended"
6. "during the calendar quarter"
7. "due to" those orders

Element one: "orders"

The statute names the instrument and nothing else about it: not its addressee, not its subject, not its source. An order is "[a]n authoritative indication to be obeyed; a command or direction," and in law "[a] directive or command of a court"; Merriam-Webster's 2020 entry gives "to give an order to : command."⁸ The Service's own Notice treats "orders, proclamations, or decrees" as orders "without regard to the level of enforcement," and its own list of qualifying orders includes "[a] State's emergency proclamation that residents must shelter in place for a specified period" and "[a]n order from a local official imposing a curfew on residents that impacts the operating hours of a trade or business."⁹ Every instrument in The COVID Project's Orders Library (the "Library") is a command: an executive order, proclamation, public health order, emergency rule, administrative order of a court, security directive, interim final rule or ordinance, published by the authority that issued it and carrying the penalty its enabling law supplies. Nothing in the word confines it to orders directed at the employer.

Element two: "from an appropriate governmental authority"

"Appropriate" means "especially suitable or compatible: fitting," the dictionary meaning the District Court adopted in Stenson Tamaddon.¹⁰ The adjective modifies "authority," and the fitness it demands is fitness to issue the order: power over the commerce, travel or meetings the order limited. Congress showed in the same section that it knew how to enumerate levels and instrumentalities of government when it wished to: § 2301(f) provides that the credit "shall not apply to the Government of the United States, the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing," and § 3134(f)(1) carries the language forward with exceptions for § 501(c)(1) organizations, public colleges and universities and public hospitals.¹¹ Two consequences follow. First, "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion"; the Suspension Clause has no enumeration of governments and no jurisdictional qualifier.¹² Second, subsection (f) is Congress's own statement that "political subdivision[s]" and "agenc[ies] or instrumentalit[ies]" of the United States and the States are governments. A school district, a port authority, a transit district, a State licensing board and a State alcoholic-beverage commission are, in the statute's words, political subdivisions or agencies or instrumentalities of a State. The Code shows that "governmental" reaches beyond the States and their subdivisions: § 7871(a) provides that "[a]n Indian tribal government shall be treated as a State" for enumerated purposes, and § 3121(e), which the credit incorporates through its definition of qualified wages, provides that "[t]he term 'State' includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa."¹³ The Notice's own Q&A-10 is the Service's list of appropriate authorities and it is broad in every dimension that matters: "the Federal government or any State or local government"; "orders, proclamations, or decrees"; a mayor, a governor, "a local official," "a local health department"; and "without regard to the level of enforcement."¹⁴

The one sentence the Service added, that orders "not from the Federal government must be from a State or local government that has jurisdiction over the employer's operations," is not in the statute. The United States has described the Notice to the Ninth Circuit in these terms:

The Notice provisions that [the plaintiff] challenges merely construe statutory language in 26 U.S.C. § 3134 that limits eligibility for the ERC to employers whose business is "partially or fully suspended," whose suspension is "due to orders from an appropriate governmental authority," and so on. Thus, the provisions are derived from, and do nothing but more crisply delineate, pre-existing eligibility requirements found in the ERC statute.

Br. for Appellees at 12-13

On the United States' own account, then, the jurisdiction sentence adds nothing to the statute. And the United States' further representation that "a business may be suspended 'due to' a government order addressing a third party" forecloses any reading of "appropriate" as an authority with jurisdiction over the employer, because the supplier's governor has no jurisdiction over the employer and the United States says the supplier's governor's order counts.¹⁵ The text therefore reaches every order from an authority with power over the commerce, travel or group meetings it limited: "orders" carries no qualifier, "appropriate" measures the authority's fitness to issue the order and nothing else, and the United States' own account of the qualifying instruments, "orders, proclamations, or decrees from the Federal government or any State or local government" that limited "commerce, travel, or group meetings," names no addressee and no jurisdiction over the employer.¹⁶

Governors, health officers, boards of health, mayors, county judges and sheriffs

Every State order in the Library recites the statute that authorized it, and those statutes are express delegations of the State's police power over commerce, travel and assembly to named officers. The Supreme Court has recognized that power for more than a century: in Jacobson the board of health of a Massachusetts city acted under "what is commonly called the police power," and "[t]he safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect"; in Compagnie Francaise a State board of health's quarantine order excluding healthy travelers was sustained because the States' power "to enact and enforce quarantine laws ... is beyond question."¹⁷ In May 2020 the Chief Justice wrote that "[o]ur Constitution principally entrusts '[t]he safety and the health of the people' to the politically accountable officials of the States 'to guard and protect,'" and in November 2020 the Court treated New York Executive Order 202.68's "10- and 25-person occupancy limits" as an order in force.¹⁸ Texas designates "the presiding officer of the governing body of an incorporated city or a county" as the emergency management director who "may exercise the powers granted to the governor under this chapter on an appropriate local scale," and the Harris County and Dallas County stay-home orders recite §§ 418.108, 418.1015 and 418.018; California vests in each local health officer the power to "take any preventive measure that may be necessary to protect and preserve the public health from any public health hazard," and every Los Angeles, San Francisco, Contra Costa and Berkeley health officer order recites §§ 101040, 101085 and 120175; Ohio's Department of Health "shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority in matters of quarantine and isolation"; Wisconsin's department "may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics"; New York City's emergency executive orders from No. 98 onward recite Executive Law § 24; New Orleans' proclamations recite La. R.S. 29:727; the District's Mayor's Orders recite the Home Rule Act.¹⁹ Sheriffs appear as the enforcement arm the orders designate: the Los Angeles County Health Officer's order recites that violation "is a crime punishable by fine, imprisonment, or both" and "requests that the Sheriff and all chiefs of police ... ensure compliance with and enforce this Order," and Texas makes violation of an emergency order an offense punishable by a fine of up to $1,000 or confinement of up to 180 days.²⁰ The Notice states that the character of a governmental order is "determined without regard to the level of enforcement"; the record shows that enforcement was, in any event, the ordinary criminal process.

Tribal nations

An Indian tribe is a government whose orders bind persons and businesses on its lands, including non-members. "The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights"; tribes "have power to make their own substantive law in internal matters ... and to enforce that law in their own forums"; "[n]onmembers who lawfully enter tribal lands remain subject to the tribe's power to exclude them," a power that "necessarily includes the lesser power to place conditions on entry, on continued presence, or on reservation conduct"; and tribes are "'domestic dependent nations' that exercise 'inherent sovereign authority.'"²¹ The Code treats a tribal government "as a State," and the Notice answers "Yes" to the question whether "tribal governments and tribal entities [are] eligible for the employee retention credit."²² A body the Service treats as a government for the purpose of claiming the credit is a governmental authority for the purpose of issuing the orders the credit describes. The Navajo Department of Health issued every Public Health Emergency Order under its enabling legislation and the Nation's emergency declaration, closed "[a]ll Businesses not otherwise exempted" from November 16, 2020 to March 15, 2021, imposed curfews and weekend lockdowns through 2020 and kept the Nation's businesses at fifty-percent occupancy under a masking and exposure-control mandate on September 30, 2021; the Yakama Nation's Public Safety Order No. 3 is "enforceable by a civil fine of $50 per violation against individuals and $500 per violation against businesses ... regardless of whether the business is licensed by the Yakama Nation or the State of Washington"; the Mescalero Apache orders carry "a criminal penalty ... or removal from the Reservation, in the case of non-Tribal Members."²³

Territorial governments

The territorial governors exercise executive power conferred by Acts of Congress and, in Puerto Rico's case, by a constitution adopted under a statute "in the nature of a compact," and the Code and the Notice bring their employers within the credit. Public Law 600 recites that "the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption"; the Supreme Court has explained that Congress meant "to accord to Puerto Rico the degree of autonomy and independence normally associated with States of the Union"; the Organic Act of Guam and the Revised Organic Act of the Virgin Islands vest "[t]he executive power" of each territory in its Governor; § 3121(e) includes the territories in "the United States"; and Q&A-4 states that "eligible employers include employers in the U.S. Territories."²⁴ The Governor of Puerto Rico acted under Act No. 20-2017, whose article 6.10 "empowers the Governor to declare a state of emergency on our Island," and OE-2020-023 of March 15, 2020 imposed the first territorial stay-at-home order and curfew in the United States; OE-2021-063 and OE-2021-064 of August 2021 required the employees of restaurants, bars, theaters, gyms, salons, child-care centers, casinos and grocery stores to be vaccinated or tested weekly, in force through September 30, 2021.²⁵

School boards, special districts, transit and port authorities

"[A] local school board such as petitioner is more like a county or city than it is like an arm of the State"; an interstate agency "comparable to a county or municipality" stands with counties and cities; a bi-state entity created by compact is a creation of "three discrete sovereigns: two States and the Federal Government."²⁶ Texas constitutes the trustees of an independent school district as "a body corporate" with "the exclusive power and duty to govern and oversee the management of the public schools of the district"; Illinois vests the Chicago board with "general supervision and jurisdiction over the public education and the public school system of the city"; the Notice's own Q&A-2 identifies a "government instrumentality" by factors that a school district, transit authority, convention authority and public utility district satisfy in full.²⁷ The Board of Education of the City of Los Angeles declared on March 10, 2020 that "emergency conditions exist throughout the District schools and offices," before the State's stay-home order; the Fairfax County School Board voted to "begin the 2020-21 school year with virtual learning for all students"; the New York City Department of Education required its staff and contractors "to have their first dose by September 27th," 2021; the Bi-State Development Agency's Metro Transit and the Port Authority of Allegheny County issued the service, capacity and airborne-transmission (face-covering) rules that governed every commute in St. Louis and Pittsburgh under compacts consented to by Congress and the Second Class County Port Authority Act.²⁸

Licensing boards and State regulators

State licensing boards and departments are agencies of the State with statutory power to make emergency rules and to condition the practice of licensed trades. Texas authorizes any State agency to "adopt an emergency rule without prior notice or hearing" on a finding of "imminent peril to the public health, safety, or welfare," and the Texas Medical Board's emergency rule of April 30, 2020 made masks, screening and respirators for aerosol-generating procedures a condition of every in-person physician encounter in the State on pain of license discipline; Florida's State Surgeon General issued Emergency Orders 20-002 through 20-015 under § 252.36(5)(a) suspending and conditioning the practice statutes of the health professions, and Florida's Department of Business and Professional Regulation ordered that in every salon "the following restrictions are mandatory ... All customers will be by appointment only ... Masks must be worn by all employees."²⁹ The State alcoholic-beverage regulators converted the governors' capacity and closure orders into license conditions enforced by suspension: the Texas Alcoholic Beverage Commission's Operation Safe Open license suspensions, as its notices and releases record them, the Florida Department's Emergency Order 2020-09 closing every bar in the State for eleven weeks on a finding that noncompliance made "individualized enforcement efforts impractical," New Jersey's expansion permits extended to November 30, 2022 on the Division's own finding in March 2021 that indoor dining had not resumed "without capacity limitations."³⁰ The gaming regulators closed every casino floor: the Louisiana Gaming Control Board's orders of March 16, 2020 provided that licensees "shall ... cease" and that "all devices will be disabled by the Division," reopened at 25 and 50 percent with half the devices dark, and in Order 29 of September 22, 2021 found that the State's "capacity, and gaming position and device limitations" had prevented licensees from maintaining license-mandated employment.³¹ The State labor agencies made the reopening conditions binding workplace law: Washington's Department of Labor and Industries adopted WAC 296-800-14035 making the Governor's proclamations, "including proclamation amendments and conditions," enforceable under RCW 49.17.180 from May 26, 2020 through September 20, 2021; Virginia's Safety and Health Codes Board adopted 16VAC25-220 on a finding of "grave danger" under Va. Code § 40.1-22(6a), binding every employer from July 27, 2020 and amended inside the third quarter of 2021; Cal/OSHA's 8 C.C.R. § 3205 took effect November 30, 2020 and was readopted June 17, 2021; Oregon OSHA's OAR 437-001-0744 took effect November 16, 2020, became permanent May 4, 2021 and restored its universal indoor face-covering requirement, one of the rule's airborne-transmission controls, August 13, 2021; New York's HERO Act required every private employer to adopt an exposure-prevention plan by August 5, 2021 and to activate it on September 6, 2021.³² The insurance and banking regulators bound every insurer and lender: Washington's Insurance Commissioner's Emergency Order 20-01 ran, in eighteen extensions, from March 5, 2020 to October 3, 2021 under RCW 48.02.060(4); New York's 11 NYCRR 229 and 3 NYCRR 119 imposed premium moratoria and mortgage forbearance by emergency regulation on every regulated institution; Texas's Commissioner's disaster determination under Insurance Code § 542.059(b) ran from March 23, 2020 to September 20, 2021.³³ The public utility commissions forbade disconnection; the price-gouging statutes activated with every declaration; the motor-vehicle agencies closed every field office ("to limit the need for in-person transactions at Department of Motor Vehicle offices," in the words of California's Executive Order N-40-20); the secretaries of state and legislatures rewrote the law of notarial acts because in-person execution was an activity their own orders limited; the corrections departments closed their lobbies to bail agents, contractors and vendors; the State education agencies closed every classroom and then placed every one under classroom infection-prevention and exposure-control rules, universal masking among them ("noncompliance is not an option," the Illinois State Board of Education wrote on August 11, 2021 of an order that "has the force of law"); the fish and wildlife agencies closed a recreational industry's product statewide by emergency rule.³⁴ Each is an order from the authority with power over that trade, and it limited the trade's commerce.

State supreme courts and judicial administrative authority

A State's highest court exercises constitutional and statutory administrative authority over the court system, and its emergency orders suspending jury trials, closing courthouses to the public, tolling deadlines and staying evictions and foreclosures were orders limiting the commerce of lenders, landlords, dealers, title companies, lawyers and every business whose transactions ran through the courts. Texas provides that "the supreme court may modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor," and the Supreme Court of Texas issued its emergency orders under that section from the First (March 13, 2020) through the Forty-Third (September 21, 2021), with the Thirty-Eighth and Fortieth in force in the third quarter of 2021; the Delaware Supreme Court, "acting under an express statute (10 Del. C. § 2004) and its constitution," closed every courthouse in the State to the public and suspended statutes of limitation from March 16, 2020 to July 13, 2021 in unbroken thirty-day extensions; Cook County's General Administrative Order 2020-07 ordered every matter by videoconference and stayed residential eviction enforcement, with distancing and capacity rules kept in force through September 30, 2021 and beyond; fourteen other high courts acted under their constitutions, court rules and judicial-emergency statutes, each recited in the order.³⁵ Congress chose the word "governmental," which includes the judicial branch.

Federal agencies and the President

Every federal instrument in the Library rests on a specific statutory grant, and the Notice itself lists "the Federal government" first among the sources of governmental orders. The CDC acted under 42 U.S.C. § 264(a) ("to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases ... from one State or possession into any other State or possession") for the conveyance mask order, the eviction moratoria, the No Sail and Conditional Sailing Orders and the inbound-testing order, under § 265 for the Title 42 suspension of "the introduction of persons and property," and under § 247d for the public health emergency renewed throughout 2020 and 2021.³⁶ OSHA acted under 29 U.S.C. § 655(c)(1) ("an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger ... and (B) that such emergency standard is necessary to protect employees from such danger") for the Healthcare Emergency Temporary Standard.³⁷ TSA acted under 49 U.S.C. § 114(l)(2)(A) ("if the Administrator determines that a regulation or security directive must be issued immediately in order to protect transportation security, the Administrator shall issue the regulation or security directive without providing notice or an opportunity for comment") for the SD 1582/84-21-01 series.³⁸ The Coast Guard acted under 46 U.S.C. §§ 70002, 70011 and 70051 and 33 C.F.R. § 160.111 ("[e]ach District Commander or Captain of the Port may order a vessel to operate or anchor in the manner directed"; "[e]ach person who has notice of the terms of an order issued under this subpart must comply with that order") for the Captain of the Port San Francisco's COVID-19 safety zone of March 19, 2020; its Marine Safety Information Bulletins of the MSIB 02-20 and 02-21 series, guidance implementing the CDC's order rather than orders in their own right and cited here as such, announced that order's application to "sea ports (e.g., passenger terminals, cargo handling facilities, and other shoreside facilities that provide transportation of persons or cargo)" and warned that non-compliance exposed a vessel to "a Captain of the Port (COTP) order directing the vessel's movement and operations"; the Treasury and CBP's temporary final rule of April 20, 2020, 19 C.F.R. § 24.1a, adopted the Suspension Clause's own vocabulary, conditioning duty deferral on an importer whose operation "is fully or partially suspended during March or April 2020 due to orders from a competent governmental authority limiting commerce, travel, or group meetings because of COVID-19."³⁹ CMS acted under 42 U.S.C. § 1320b-5(b) ("to temporarily waive or modify the application of ... the requirements of subchapters XVIII, XIX, or XXI, or any regulation thereunder") for the § 1135 waivers and under its conditions-of-participation authority for the nursing-home testing, reporting, visitation and vaccination-program rules.⁴⁰ The President acted under the Defense Production Act, 50 U.S.C. § 4511(a) ("to require that performance under contracts or orders ... shall take priority" and "to allocate materials, services, and facilities"), for Executive Orders 13909, 13910, 13911 and 13917 and the FEMA allocation and export rules; under 8 U.S.C. § 1182(f) ("he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens") for the entry proclamations; and the Secretary of Homeland Security acted under 19 U.S.C. § 1318(b)(1) ("[m]odify hours of service, alter services rendered at any location"; "[t]ake any other action that may be necessary to respond directly to the national emergency") for the land-border notifications, while the Stafford Act declarations for every State rest on 42 U.S.C. § 5191.⁴¹ The Department of Labor acted under the Families First Coronavirus Response Act itself, whose §§ 3102 and 5102 commanded that "[a]n employer shall provide to each employee ... paid sick time" for an employee "subject to a Federal, State, or local quarantine or isolation order related to COVID-19" or caring for a child whose "school or place of care ... has been closed," and whose implementing rule, 29 C.F.R. part 826, defined "quarantine or isolation order" to include stay-at-home orders: the federal government's own recognition, in regulatory text in April 2020, that stay-at-home orders were orders.⁴²

The bank and securities regulators, the labor and immigration agencies, the other HHS agencies, the federal lands and courts, and the Department of Defense

The Board of Governors amended Regulation D by interim final rule because depositors could not reach branches, and with the OCC and FDIC deferred appraisal requirements because appraisers could not enter homes; the OCC found that shareholder meetings could not be held in person "as a result of stay-at-home and similar orders" and moved them online by interim final rule; the SEC found, eight days before the national emergency, that "limited access to facilities, support staff, and professional advisors" prevented every public company from performing a core function; the NCUA, by letters to federal credit unions that are guidance and are cited as such, told every federal credit union how its member meetings could be held without assembling.⁴³ The State Department cancelled every routine visa appointment in the world as of March 20, 2020 and resumed post by post from July 15, 2020; USCIS "temporarily suspended all face-to-face service" from March 18 to June 3, 2020 and reopened under masks and screening; DHS deferred the Form I-9 physical-inspection rule for "employers and workplaces that are operating remotely" from March 20, 2020 to July 31, 2023; the Department of Labor's FFCRA rule and OSHA's National Emphasis Program named industries by NAICS code.⁴⁴ HHS's Office for Civil Rights suspended HIPAA penalties for telehealth from March 17, 2020 to May 11, 2023, the federal legal predicate that every remote visit was a compelled substitute for in-person care; the Department of Veterans Affairs mandated vaccination of health-care personnel and "volunteers and contractors who work in VHA facilities" from July 26, 2021; the Social Security Administration announced the closure of its field offices to the public from March 17, 2020 and the restoration of in-person service on April 7, 2022; the Bureau of Prisons suspended visits, volunteer and contractor access from March 13, 2020.⁴⁵ The National Park Service closed Yellowstone and Grand Teton to all visitors "at the request of local county health officers" and reopened them on phases keyed to three States' travel-quarantine orders, closures and reopenings the parks announced by news release and that are cited as the record of them; the Tax Court made every proceeding remote from May 29, 2020, announced on August 27, 2021 that its fall sessions would remain remote, and found in its own order that its courthouse "remained closed to the public since March 2020"; the Judicial Conference found on March 29, 2020 that "emergency conditions ... will materially affect the functioning of the federal courts generally"; the Northern District of Illinois' chain of general orders runs unbroken from March 12, 2020 to a September 20, 2021 vaccination order.⁴⁶ The Department of Defense stopped all movement of its personnel from March 16, 2020, reissued its travel restrictions on March 15, 2021 "effective immediately" and "until further notice," and recorded week by week the installations to which travel was restricted: 161 of 231 on June 29, 2020; 140 on December 28, 2020; 92 on March 29, 2021; 16 on June 28, 2021; 54 of 230 on September 27, 2021; it told its contractors in March 2020 that they were "expected to maintain their normal work schedules" under State orders that closed the businesses around them, and in July, August and September 2021 it bound contractors and visitors to indoor masking, attestation and testing.⁴⁷ Each of these is a governmental body or officer; each had legal power under a constitution, statute, code, charter or compact to issue the instrument; and each instrument limited commerce, travel or group meetings within the issuer's jurisdiction. Each is an appropriate governmental authority.

Element three: "limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes)"

"Limit" is "[s]omething that restricts or restrains; a restraint," and as a verb to confine within bounds.⁴⁸ "Commerce" is "the exchange or buying and selling of commodities on a large scale involving transportation from place to place"; "[t]he buying and selling of goods, especially on a large scale, as between cities or nations"; and, in Chief Justice Marshall's words, "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches."⁴⁹ "Travel" is "to go on or as if on a trip or tour : journey"; a "meeting" is "an act or process of coming together: such as ... an assembly for a common purpose (such as worship)."⁵⁰ The parenthetical forecloses any argument that the commerce or the meetings must be of a particular kind. A stay-at-home order limits commerce (it forbids the public to leave home except for enumerated purposes), limits travel in terms and limits group meetings in terms; it is the paradigm instrument the clause describes, not an exception to it. A telework mandate ("work in offices is prohibited whenever telework and work-at-home options are available," in Oregon's words) is an order limiting commerce at the place of business.⁵¹ School and child-care closure orders, travel-quarantine orders, gathering caps, orders on suppliers, customers, venues, carriers, courts, clerks and licensing boards are each "orders ... limiting commerce, travel, or group meetings." The statute says nothing of the source of the order, nothing of its addressee and nothing of its subject; it asks what the order limited, and every instrument in the Library limited commerce, travel or group meetings in terms.

Element four: "due to the coronavirus disease 2019 (COVID-19)"

Every instrument in the Library recites the disease as its predicate. The Notice's own Example 3 excludes a health department's closure order only because it "is unrelated to COVID-19."⁵²

Element five: "the operation of the trade or business ... fully or partially suspended"

Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) ("Tri-State"), fixes the meaning on the parties' agreed definitions. "Suspension" is "[t]he act of temporarily delaying, interrupting, or terminating something," or "[t]he state of such delay, interruption, or termination"; "partial" is "[o]f, relating to, being, or affecting only a part; not total"; the United States' own definitions were "a temporary but entire cessation of business operations" (full) and "a temporary cessation of a portion of operations" (partial).⁵³ The holding: "a 'partial suspension' is a temporary delay, interruption, or termination of a portion an employer's business. The language is plain."⁵⁴ "Partially" means "to some extent" or "in some degree," and "operation" means a business's "method or manner of functioning."⁵⁵ Any real portion suffices; "portion" is not "significant," and the court refused the United States' attempt "to conflate 'more than nominal' to suggest that it means 'significant'": "the plain language and ordinary meaning of partial and nominal do not suggest either of those interpretations."⁵⁶ A dining room closed while takeout continued, a showroom closed while service continued, an elective-procedure function terminated while the emergency department continued, an office closed while the work continued from homes under compulsion, a sales floor confined to four customers per thousand square feet, a plant held to distancing that cut its throughput, a school building closed to students, a courthouse closed to the public: each is the termination, interruption or delay of a portion of an operation, and each is what "partially suspended" means.

Element six: "during the calendar quarter"

The phrase modifies "suspended." Congress did not write "orders in effect during the calendar quarter." The suspension an order caused continues, because of that order, for the period its compelled dismantling took to reverse; Tri-State defines suspension to include "delay"; "due to" is but-for; and the Notice's own 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."⁵⁷ The continuing-suspension analysis states the point in full at Continuing suspension. This analysis never says that an expired order suspended anyone by its own force; it says that the suspension the order caused continued because of it, and the Library lists, for every quarter, the orders that were in force.

Element seven: "due to" those orders

"Due to" means "because of," which both parties in Tri-State agreed and the court held "plain and unambiguous."⁵⁸ "Because of" is but-for causation. Burrage holds that an undefined causal phrase takes "its ordinary meaning," that "results from" "imposes, in other words, a requirement of actual causality," which "requires proof 'that the harm would not have occurred' in the absence of—that is, but for—the defendant's conduct," and that "courts regularly read phrases like 'results from' to require but-for causality. Our interpretation of statutes that prohibit adverse employment action 'because of' an employee's age or complaints about unlawful workplace discrimination is instructive"; the Court "decline[d] to adopt the Government's permissive interpretation."⁵⁹ Gross holds that under the "plain language" of a "because of" statute "a plaintiff must prove that age was the 'but-for' cause"; Nassar equates "by reason of" with "'but for' cause"; Bostock explains that "a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. Often, events have multiple but-for causes"; and the Ninth Circuit applies the rule to "because" in the Mine Act on the authority of all four.⁶⁰ Tri-State applied the rule to the Suspension Clause: the United States' "proximate, independent, and sufficient cause" theory "improperly adds words into the statute," "the Court recognizes that 'due to' requires 'but-for' causation," and the hospital "has alleged facts that but-for the Proclamation, Plaintiff's operations would not be partially suspended."⁶¹ The court disposed of the argument that the virus, not the orders, caused the changes: "Some of the interruptions and diversions were caused by COVID-19 illness, however, the required protocols and procedures to comply with the Proclamation were not. ... Sick patients and employees alone did not require additional protocols. Based on this argument, there are not many businesses or any business that would be eligible under the ERC at all. Therefore, this argument fails."⁶² Where an order compelled a change in how a function operated, the operation of that function was suspended in part because of the order: but for the order, no law required the change.

The standing duties: a statute is an order

A statute, regulation or rule that says "shall" or "must," or that makes non-compliance an offense, is an order within the meaning of the clause, and three layers of such commands bound every employer in every jurisdiction throughout the six quarters; that analysis, State by State, is at Nothing was voluntary: the standing duties.

The title

The United States argued in Tri-State that the heading "Employers Subject to Closure Due to COVID-19" makes "suspension" mean "closure." The court answered: "if the title was a textual hint that suspension meant closure, it would then not be applicable to the other methods of eligibility. It is more likely that the use of 'closure' in the title of the statute is used to recognize closure and other disruptions."⁶³

The canons

"[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. ... When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'"⁶⁴ "[W]hen the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms"; neither party in Tri-State claimed ambiguity, and the plain reading "does not result in absurdity."⁶⁵ Undefined terms take their ordinary public meaning at the time of enactment, which the March 2020 dictionary editions held in the Library's legal-authorities collection capture.⁶⁶ "It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress's province," a sentence Tri-State applied to "proximate, independent and sufficient cause" and which answers "essential," "comparable operations," "customers," "directed at business operations" and "significant" alike.⁶⁷ Congress wrote a numerical threshold ("less than 80 percent of the gross receipts") into clause (II) and none into clause (I), and "it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."⁶⁸ The gross-receipts prong is not a reason to narrow the suspension prong: it shows that "an employer may be economically affected without any partial or full suspension of trade or business operations due to a government order," which "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."⁶⁹ "Until the language is deemed ambiguous, the Court does not look to legislative history."⁷⁰

Loper Bright and Skidmore

"Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority"; courts "may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes," whose weight "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."⁷¹ The Ninth Circuit after Loper Bright: "The weight given to an agency's interpretation under Skidmore depends on the thoroughness, consistency, and persuasiveness of the decision itself."⁷² The United States has told two courts that the Notice is not entitled to deference, and the District Court held that it "carries no force of law and is entitled to no deference."⁷³ Tri-State gave the Notice Skidmore consideration and adopted only the phrase "more than a nominal portion," and only because it "does not contradict the agreed-upon definitions of the parties"; it refused every gloss that did.⁷⁴ Under the consistency factor the Service's 10 percent position has three faces: a "facts and circumstances" test in the Notice, a "safe harbor" in two federal courts and a floor in examination letters, Chief Counsel memoranda and the Service's public page. An interpretation with three faces has no "power to persuade." The Court of Federal Claims records the same position taken by the United States before it: "The government has not argued that IRS Notice 2021-20 sets out binding interpretations of the governing statute."⁷⁵

What is not in the statute

"Essential," "comparable operations," "telework," "customers," "voluntary," "more than nominal," "10 percent," "directed at," "jurisdiction over the employer," "proximate," "independent," "sufficient" and "foreseeable" appear nowhere in any of the four enactments. The statute does not ask whether the employer was "essential": that designation was the premise of the conditions the orders imposed on essential employers (occupancy caps, hours, written protocols, screening, distancing, visitor bans, elective-procedure suspensions, four customers per thousand square feet), never an exemption from them, and Michigan's Executive Order 2020-42, which ordered every open store over 50,000 square feet to "[c]lose areas of the store ... dedicated to ... Carpet or flooring ... Furniture ... Garden centers and plant nurseries ... Paint" and barred "the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences," is the clearest text in the country that an "essential" designation was a condition and not a release.⁷⁶ The statute does not ask whether the employer found a way to keep some operation going remotely: an order that closed the workplace suspended the operation at the workplace; "partial" contemplates the remainder continuing; a remote operation under compulsion is an operation the order changed; and the Notice's own Q&A-15 finds partial suspension wherever "the closure of the workplace causes the employer to suspend business operations for certain purposes, but not others," while Q&A-16's factor (3) makes physical work space "so critical" that "this factor alone" defeats comparability wherever central tasks cannot be performed remotely.⁷⁷ The statute does not exclude orders on customers: a stay-at-home order on the customer base is an order "limiting commerce, travel, or group meetings" in terms, the commerce it limited was the employer's, the United States has represented that an order "addressing a third party" suspends a business, Q&A-10 lists the shelter-in-place proclamation as a governmental order, and Q&A-13's own example admits that the order "limits travel."⁷⁸ The statute does not ask whether compliance was "voluntary": Q&A-14 by its own terms reaches only a suspension "not due to a governmental order," and a change made because an order required it is a change due to the order.⁷⁹ The statute does not distinguish an order's direct and indirect effects: it asks for causation, and Tri-State fixes its meaning. The statute contains no nominal-effect requirement: a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business," and the Notice's own first paragraph of Q&A-18 lists face-covering requirements among the modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public."⁸⁰ Each of these is the statute's answer; the Service's contrary position is not a reasonable alternative to the text, and this analysis does not present it as one.

The Notice's history shows that every narrowing gloss is a late addition

As posted on April 29, 2020, the Service's frequently-asked-questions page contained no "nominal" test and no percentage: FAQ 28 defined governmental orders as those that limit commerce, travel or group meetings "in a manner that affects an employer's operation of its trade or business, including orders that limit hours of operation," said an order qualifies "without regard to the level of enforcement," listed the shelter-in-place proclamation and the curfew, and said the governor's closure order was "entitling employers with non-essential businesses to claim the Employee Retention Credit"; FAQ 34 answered "Yes" without qualification that a workplace closed "for certain purposes, but ... open for other purposes ... would be considered to be partially suspended"; FAQ 32 confined the customer exclusion to "an essential business that is not required to close its physical locations or otherwise suspend its operations" and to a suspension claimed "for the sole reason" of the customers' order.⁸¹ The words "more than a nominal" first appeared on June 19, 2020, in the revised FAQs 30 and 34 (FAQ 33's revision of the same day added the "certain purposes, but not others" paragraph), and still without any percentage.⁸² The two 10 percent deeming rules, the four comparable-operations factors and the transition-period sentence, the categorical masks-and-aisles sentence and the extension of the customer exclusion to every employer and to any "reduction in demand" first appeared in the Notice on March 1, 2021, after every 2020 quarter had closed; the Service described the Notice as "similar to the information in the employee retention credit FAQs, but includes clarifications," and every substantive change ran toward the positions the Service has since taken in examination and the United States in court, and away from the statute.⁸³ The Service's own doctrine on its FAQs is that they "may not be relied upon as legal authority," that "if a FAQ turns out to be an inaccurate statement of the law as applied to a particular taxpayer's case, the law will control the taxpayer's tax liability," and the Notice "incorporates the information provided in the FAQs" and claims nothing more for itself.⁸⁴ Today the Service's public page tells every taxpayer that "[t]he IRS considers 'more than nominal' to be at least 10% of your business," and Chief Counsel's AM 2023-007 tells examiners that an employer "needs to substantiate ... a reduction ... of not less than 10 percent to fall within the provisions of Notice 2021-20," in the same year the United States told the District of Arizona that the figure "isn't an eligibility requirement" and the Ninth Circuit that it is "a quintessential safe harbor."⁸⁵ The Service administers 10 percent as the definition of "more than nominal" while the United States tells the courts it is a safe harbor. The two positions cannot both be true, and the United States chose the second in two federal courts.

The 2021 re-enactment

On March 11, 2021, Congress re-enacted the identical Suspension Clause for wages paid after June 30, 2021, knowing the state of the orders. On November 15, 2021, it terminated the credit for the fourth quarter only, "for calendar quarters beginning after September 30, 2021." Congress twice chose to leave the governmental-orders test operating for July 1 through September 30, 2021.⁸⁶ The Service's own guidance says the same: Notice 2021-49 carried the suspension rules into the third quarter on August 4, 2021 ("continue to apply for the third and fourth calendar quarters of 2021"), restated the Suspension Clause for those quarters "[a]pplying the same rules as for the first two quarters of 2021," and Notice 2021-65 wrote in December 2021 that those rules "no longer apply for the fourth calendar quarter of 2021," which is a statement that they applied for the third; the Form 941-X instructions' own definition of a recovery startup business for the third quarter of 2021 presupposes suspension-based eligibility in that quarter.⁸⁷ A reading under which no order could qualify anyone after June 2021 reads the March 2021 re-enactment out of the statute and makes the November 2021 termination surplusage.

There were no government orders related to COVID-19 in effect during the quarter which could have fully or partially suspended your trade or business.

The decisions to date

Two courts have construed the Suspension Clause on the merits of its words in terms that hold the United States to the statute, three have refused the United States' demand for order-by-order pleading of proximate cause, and several have read into "due to" a proximate-cause requirement the clause does not contain; each is set out and answered at The Law: the cases.

Judicial notice

Governmental orders are public records. A court "may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned," "must take judicial notice if a party requests it and the court is supplied with the necessary information," and may do so "at any stage of the proceeding."⁸⁹ The Ninth Circuit notices government documents "publicly available on the Washington government website" where "neither party disputes the authenticity of the website nor the accuracy of the information," and it noticed California's COVID-19 State and county orders in South Bay and Brach; the Third Circuit wrote in Clark that "[a]lthough not every executive order discussed herein was entered into the record below, we may take judicial notice of their content"; the Court of Federal Claims treated California's executive and county orders as governmental orders on the pleadings.⁹⁰ Every instrument in the Library is an order, regulation or statute published by the issuing authority, retrieved with its source URL, hash and retrieval method recorded; the Library supplies "the necessary information."

The standards, in brief

Preponderance of the evidence is the only standard for a refundable credit; fraud is the Government's burden "in any proceeding," to be carried by clear and convincing evidence; the reading stated here carries substantial authority and a reasonable basis within the meaning of the accuracy-related penalty regulations, a return position that rests on it is not frivolous, and the reasonable-cause and good-faith standard of § 6664(c)(1) is measured against it; § 6676 is stated as amended by Pub. L. 119-21 § 70605(f); the United States' statements in its briefs and in open court are admissions of a party-opponent; judicial estoppel is available against it; and the Service is bound by its own directive to its published guidance "to the same extent as a revenue ruling."⁹¹ The Notice as safe harbor develops the last three propositions, and The standards of proof the burdens and penalties.

1. Defendant's Opposed Motion to Stay Case at 3, County of Barry v. United States, No. 1:25-cv-01099 (W.D. Mich. Sept. 4, 2026), ECF No. 21 (Ex. LAW-085) ("The statute does not define order, partial suspension, or the causation requirement. The parties in this case disagree about all three of these parts of the ERC."); the United States' opposition and cross-motion for summary judgment in Stenson Tamaddon, LLC v. IRS, No. 2:24-cv-01123-SPL (D. Ariz. Jan. 6, 2025), ECF No. 44 ("Doc. 44"), at 19, 24, 31 & n.8; Brief for the Appellees, Stenson Tamaddon, LLC v. IRS, No. 25-4217 (9th Cir. Jan. 30, 2026) ("Br. for Appellees"), at 26, 58. ↩
2. Pub. L. 116-136, 134 Stat. 281, 347-351 (Ex. LAW-001) (table of contents at 134 Stat. 282; the Suspension Clause at 134 Stat. 348; § 2301(m) at 134 Stat. 351: "This section shall only apply to wages paid after March 12, 2020, and before January 1, 2021."). The 2020 credit was 50 percent of qualified wages, capped at $10,000 of wages per employee for the year. ↩
3. Pub. L. 116-260, div. EE, §§ 206-207, 134 Stat. 1182, 3059-3065 (Ex. LAW-002) (§ 206(e), 134 Stat. at 3061; § 207(a)(1), (b), 134 Stat. at 3062; § 207(k), 134 Stat. at 3065: "The amendments made by this section shall apply to calendar quarters beginning after December 31, 2020"). Both appellate briefs in Stenson Tamaddon cite the enactment as "Pub. L. 116-260, 134 Stat. 1182, 3062." ↩
4. Pub. L. 117-2, § 9651, 135 Stat. 4, 176-182 (Ex. LAW-003) (the Suspension Clause at 135 Stat. 177; § 3134(n) at 135 Stat. 182: "This section shall only apply to wages paid after June 30, 2021, and before January 1, 2022"; § 9651(d), 135 Stat. at 182: "The amendments made by this section shall apply to calendar quarters beginning after June 30, 2021."). ↩
5. Pub. L. 117-58, § 80604, 135 Stat. 429, 1341 (Ex. LAW-004). ↩
6. Pub. L. 119-21, § 70605, 139 Stat. 72, 286-289 (July 4, 2025) (Ex. LAW-005) (subsec. (d), 139 Stat. at 287-288; subsec. (e), 139 Stat. at 288; subsec. (f), 139 Stat. at 288: "Section 6676(a) is amended by striking 'income tax' and inserting 'income or employment tax'"; subsec. (g)(4), 139 Stat. at 288-289); 26 U.S.C. § 3134 (current) (Ex. LAW-006); CARES Act § 2301 as amended, 26 U.S.C. § 3111 note (Ex. LAW-007); see Juggler Dave, Inc. v. United States, No. 25-338, at 1-2, 9 (Fed. Cl. Mar. 25, 2026) (Ex. LAW-029); Key Meetings, LLC v. United States, No. 3:25-cv-06520, at 1-4 (N.D. Cal. June 26, 2026) (Ex. LAW-030) (§ 70605(d) applied only to the § 3134 quarter). ↩
7. CARES Act § 2301(c)(2)(A)(ii)(I), 134 Stat. at 348 (Ex. LAW-001); I.R.C. § 3134(c)(2)(A)(ii)(I), 135 Stat. at 177 (Ex. LAW-003). ↩
8. Order, American Heritage Dictionary of the English Language (5th ed.), senses 6 and 10 (Ex. LAW-058); Order, Merriam-Webster.com (capture of March 2020) (Ex. LAW-044). ↩
9. Notice 2021-20, 2021-11 I.R.B. 922, Q&A-10, at 927-28 ("Whether orders, proclamations or decrees are governmental orders is determined without regard to the level of enforcement of the governmental order."; "Governmental orders include: An order from the city's mayor stating that all non-essential businesses must close for a specified period; A State's emergency proclamation that residents must shelter in place for a specified period, other than residents who are employed by an essential business and who may travel to and work at the workplace location; An order from a local official imposing a curfew on residents that impacts the operating hours of a trade or business for a specified period; An order from a local health department mandating a workplace closure for cleaning and disinfecting."). ↩
10. The summary-judgment order of June 20, 2025 in Stenson Tamaddon, LLC v. IRS, No. 2:24-cv-01123-SPL (D. Ariz.), ECF No. 49 ("Doc. 49"), at 13-14 ("the Notice provides a natural interpretation of the plain meaning of the statutory text, 'appropriate' meaning 'especially suitable or compatible: fitting.' See Appropriate, Merriam-Webster Online Dictionary"); Appropriate, American Heritage Dictionary (5th ed.) ("Suitable for a particular person, condition, occasion, or place; fitting") (Ex. LAW-059). ↩
11. CARES Act § 2301(f), 134 Stat. at 349-50 (Ex. LAW-001); § 2301(f)(1)-(2) as amended (Ex. LAW-007); I.R.C. § 3134(f)(1)-(2) (Ex. LAW-354, 26 U.S.C. (2023 ed.) at 2741). ↩
12. Russello v. United States, 464 U.S. 16, 23 (1983) (Ex. LAW-014) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). ↩
13. 26 U.S.C. § 7871(a) (Ex. LAW-311); 26 U.S.C. § 3121(e)(1)-(2) (Ex. AGY-TERRITORIES-106); CARES Act § 2301(c)(5)(A), 134 Stat. at 349 (qualified wages defined by reference to "wages (as defined in section 3121(a))") (Ex. LAW-001); I.R.C. § 3134(c)(3)(A) (Ex. LAW-354). ↩
14. Notice 2021-20, Q&A-10, at 927-28; id., Q&A-3, at 926 ("Any tribal government or tribal entity that operates a trade or business may be an eligible employer"); Q&A-4, at 926 ("eligible employers include employers in the U.S. Territories"); Q&A-2, at 926 (the six-factor test for "a government instrumentality," citing Rev. Rul. 57-128, 1957-1 C.B. 311). ↩
15. Notice 2021-20, Q&A-10, at 928; Br. for Appellees at 12-13; id. at 41; Doc. 44 at 12 ("Consistent with the language in the statute, the IRS explained in FAQ 10 what type of governmental orders may be considered in determining eligibility for the ERC. On that list were 'orders, proclamations, or decrees from the Federal government or any State or local government' ..."). The District Court's paraphrase that the "fitting" authority "would be the one having jurisdiction over an employer's operations," Doc. 49 at 14, appears in its ruling on the Administrative Procedure Act claims, and the same order holds that the Notice "carries no force of law and is entitled to no deference," Doc. 49 at 27; the dictionary reading the court adopted is the one this analysis applies. ↩
16. CARES Act § 2301(c)(2)(A)(ii)(I), 134 Stat. at 348 (Ex. LAW-001); I.R.C. § 3134(c)(2)(A)(ii)(I), 135 Stat. at 177 (Ex. LAW-003); Order, Commerce, Travel, Meeting, Merriam-Webster.com (captures of March 2020) (Ex. LAW-044, Ex. LAW-043, Ex. LAW-050, Ex. LAW-051); Order, Commerce, American Heritage Dictionary (5th ed.) (Ex. LAW-058, Ex. LAW-055); Doc. 44 at 12 (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 (for commercial, social, religious, or other purposes) due to the coronavirus disease"), 30 (orders "directed at business operations (operational hours, space, etc.)" and employee face-covering requirements are "considered"); Br. for Appellees at 41 (a business "may be suspended 'due to' a government order addressing a third party"). ↩
17. Jacobson v. Massachusetts, 197 U.S. 11, 12, 25, 27, 38 (1905) (Ex. LAW-324); Compagnie Francaise de Navigation a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 387 (1902) (Ex. LAW-325) ("That from an early day the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question."). ↩
18. South Bay United Pentecostal Church v. Newsom, No. 19A1044, slip op. at 2 (U.S. May 29, 2020) (Roberts, C.J., concurring) (Ex. LAW-327) (quoting Jacobson, 197 U.S. at 38); Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, slip op. at 1 (U.S. Nov. 25, 2020) (per curiam) (Ex. LAW-328) ("Respondent is enjoined from enforcing Executive Order 202.68's 10- and 25-person occupancy limits on applicant"). ↩
19. Tex. Gov't Code §§ 418.012, 418.016(a), 418.018, 418.108(a), 418.1015(a)-(b), 418.173 (Ex. LAW-331); Harris County, Stay Home, Work Safe Order (Mar. 24, 2020) (Ex. MET-HOU-005); Dallas County, Amended Order, Stay Home Stay Safe (Mar. 22, 2020) (Ex. MET-DFW-005); Cal. Health & Safety Code § 101040(a) (Ex. LAW-335); § 120175 (Ex. LAW-336); County of Los Angeles Health Officer, Order of Mar. 16, 2020 (Ex. MET-LA-001) and Safer at Home Order (Mar. 21, 2020) (Ex. MET-LA-003); San Francisco Health Officer Order No. C19-07 (Mar. 16, 2020) (Ex. MET-SFO-001); Ohio Rev. Code § 3701.13 (Ex. LAW-341); Ohio Dep't of Health, Director's Stay at Home Order (Mar. 22, 2020) (Ex. OH-011); Wis. Stat. § 252.02(3), (6) (Ex. LAW-350); Wisconsin Emergency Order #12, Safer at Home (Mar. 24, 2020) (Ex. WI-002); N.Y.C. Emergency Executive Order No. 98 (Mar. 12, 2020) (Ex. MET-NYC-001); New Orleans, Mayoral Proclamation to Promulgate Emergency Orders (Mar. 16, 2020) (Ex. MET-MSY-002); D.C. Mayor's Order 2020-045 (Mar. 11, 2020) (Ex. DC-001); Cal. Gov't Code §§ 8567(a), 8630(a) (Ex. LAW-338, Ex. LAW-337); N.Y. Exec. Law § 29-a(1) (Ex. LAW-351); 20 ILCS 3305/7 (Ex. LAW-339); Mich. Comp. Laws § 333.2253 (Ex. LAW-342); 35 Pa.C.S. § 7301(a)-(c) (Ex. LAW-343) ("the Governor may issue, amend and rescind executive orders, proclamations and regulations which shall have the force and effect of law"); Mass. Gen. Laws ch. 17, § 2A (Ex. LAW-362); ch. 111, § 31 (Ex. LAW-361); RCW 43.06.220(1)-(2) (Ex. LAW-340); Fla. Stat. § 252.36 (Ex. LAW-344). ↩
20. County of Los Angeles Health Officer, Safer at Home Order for Control of COVID-19 (rev. Apr. 10, 2020) (Ex. MET-LA-004) ("Violation of or failure to comply with this Order is a crime punishable by fine, imprisonment, or both. (California Health and Safety Code § 120295 ...)"; "the Health Officer requests that the Sheriff and all chiefs of police in all cities located in the Los Angeles County Public Health Jurisdiction ensure compliance with and enforce this Order"); Tex. Gov't Code § 418.173(a)-(b) (Ex. LAW-331); Notice 2021-20, Q&A-10, at 928. ↩
21. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 561 (1832) (Ex. LAW-317); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (Ex. LAW-320); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 144 (1982) (Ex. LAW-318); Michigan v. Bay Mills Indian Community, 572 U.S. 782, 788 (2014) (Ex. LAW-319). ↩
22. 26 U.S.C. § 7871(a) (Ex. LAW-311); Notice 2021-20, Q&A-3, at 926. ↩
23. Navajo Dep't of Health, Public Health Emergency Order No. 2020-030 (Nov. 2020) (Ex. AGY-TRIBAL-013) (reciting "the power and authority set forth in the NDOH enabling legislation (NNC Resolution No. CO-50-14), and in conjunction with the Navajo Nation Public Health State of Emergency Declaration (CEM Resolution No. 20-03-11)"); Navajo PHEOs 2020-015 to 2020-022 (Ex. AGY-TRIBAL-003 to Ex. AGY-TRIBAL-008) (the 2020 Q3 weekend lockdowns); Navajo PHEOs 2021-015, 2021-017 and 2021-019 (Aug. 4 and Aug. 12, 2021) (Ex. AZ-080, Ex. AZ-082, Ex. AZ-084) (the mask mandate for schools and businesses, Orange Status and the gathering limits in force Sept. 30, 2021); PHEO 2021-020 (Oct. 18, 2021) (Ex. AGY-TRIBAL-022) (continuing the same status after the quarter; post-period, cited for continuity only); Yakama Nation Public Safety Order No. 3 (June 26, 2020) (Ex. AGY-TRIBAL-054); Mescalero Apache Tribe, Proclamation of Mar. 19, 2020 (Ex. AGY-TRIBAL-023) and Executive Order 21-05 (Aug. 20, 2021) (Ex. AGY-TRIBAL-040) (Mescalero Apache Tribal Code § 10-16-10(D)). ↩
24. Act of July 3, 1950, ch. 446, § 1, Pub. L. 81-600, 64 Stat. 319 (Ex. LAW-313); 48 U.S.C. § 731b (Ex. LAW-355); Examining Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 594, 596 (1976) (Ex. LAW-326); 48 U.S.C. § 1422 (Ex. LAW-356); 48 U.S.C. § 1591 (Ex. LAW-357); 26 U.S.C. § 3121(e)(2) (Ex. AGY-TERRITORIES-106); Notice 2021-20, Q&A-4, at 926. ↩
25. Puerto Rico, OE-2020-020 (Mar. 12, 2020) (Ex. AGY-TERRITORIES-001) (reciting Act No. 20-2017 § 6.10); OE-2020-023 (Mar. 15, 2020) (Ex. AGY-TERRITORIES-002) (curfew 9:00 p.m. to 5:00 a.m. "for all citizens" and "total closure" of governmental and private-sector operations except essentials; misdemeanor penalty); OE-2021-063 (Aug. 11, 2021) (Ex. AGY-TERRITORIES-034) and OE-2021-064 (Aug. 19, 2021) (Ex. AGY-TERRITORIES-035) (vaccination or weekly testing of the employees of restaurants, bars, theaters, cinemas, stadiums, gyms, salons, barbershops, spas, child-care centers, casinos, grocery and convenience stores; repealed only by OE-2021-075 on Nov. 15, 2021); Moreland et al., 69 MMWR at 1198 (Ex. LAW-201) (Puerto Rico's Mar. 15, 2020 order the first territorial stay-at-home order). ↩
26. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (Ex. LAW-323); Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 401 (1979) (Ex. LAW-322); Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 40, 42 (1994) (Ex. LAW-321); Joint Resolution of Aug. 23, 1921, 42 Stat. 174 (Ex. LAW-329) (consent to the Port of New York Authority compact); Joint Resolution of June 14, 1932, 47 Stat. 308 (Ex. LAW-330) (consent to the Delaware River Joint Commission compact). ↩
27. Tex. Educ. Code § 11.151(a), (b), (d) (Ex. LAW-333); 105 ILCS 5/34-18 (Ex. LAW-360); Cal. Educ. Code § 35160 (Ex. LAW-358); Va. Code § 22.1-79(5) (Ex. LAW-359); Notice 2021-20, Q&A-2, at 926. ↩
28. Board of Education of the City of Los Angeles, Special Meeting Order of Business, Board Report No. 308-19/20 (Mar. 10, 2020) (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-028); Fairfax County Public Schools, Message from the Superintendent, "FCPS Will Begin School Year September 8 Virtually" (July 22, 2020, reporting the School Board's decision of July 21, 2020) (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-050, context) ("the Fairfax County School Board supported my revised recommendation that we begin the 2020-21 school year with virtual learning for all students"); N.Y.C. Dep't of Education, announcement of Aug. 26, 2021 (Ex. AGY-LOCAL-DISTRICTS-AUTHORITIES-008) ("All DOE staff and contractors in DOE buildings are required to have their first dose by September 27th"); Bi-State Development Agency, Metro Transit orders (Ex. MET-STL-038, Ex. MET-STL-039, Ex. MET-STL-041, Ex. MET-STL-043) (Bi-State Development Agency Compact, RSMo § 70.370; 45 ILCS 100/1; Pub. L. 81-743); Port Authority of Allegheny County (Ex. MET-PIT-041, Ex. MET-PIT-042, Ex. MET-PIT-044) (Second Class County Port Authority Act, 55 P.S. § 551 et seq.). ↩
29. Tex. Gov't Code § 2001.034(a)-(c) (Ex. LAW-334); Texas Medical Board, emergency rule of Apr. 30, 2020, 22 Tex. Admin. Code § 190.8(2)(U) (Ex. AGY-ST-HEALTH-BOARDS-046); Texas Medical Board, emergency rule of Apr. 21, 2020 enforcing GA-15 (Ex. AGY-ST-HEALTH-BOARDS-045); Texas State Board of Pharmacy, Emergency Rule, 22 Tex. Admin. Code § 291.30 (Mar. 20, 2020) (Ex. AGY-ST-HEALTH-BOARDS-016); Florida Dep't of Health, Emergency Orders 20-002 to 20-015 (Ex. AGY-ST-HEALTH-BOARDS-001 to Ex. AGY-ST-HEALTH-BOARDS-014) (Fla. Stat. § 252.36(5)(a); EO 20-52 § 4.B); Florida DBPR, mandatory salon measures under EO 20-120 (May 9, 2020) (Ex. AGY-ST-TRADE-BOARDS-002) ("the following restrictions are mandatory ... All customers will be by appointment only ... No group appointments are permitted. Masks must be worn by all employees."); Fla. Stat. § 120.54(4) (Ex. AGY-ST-TRADE-BOARDS-006, Emergency Rule 61H1-33.003). ↩
30. Texas Alcoholic Beverage Commission, notice of June 17, 2020 and Operation Safe Open suspensions (Ex. AGY-ST-ALCOHOL-004, Ex. AGY-ST-ALCOHOL-009 to Ex. AGY-ST-ALCOHOL-012, Ex. AGY-ST-ALCOHOL-019 (context)); TABC implementation of GA-28 and GA-32 (Ex. AGY-ST-ALCOHOL-005 (context) to Ex. AGY-ST-ALCOHOL-007, Ex. AGY-ST-ALCOHOL-013 (context), Ex. AGY-ST-ALCOHOL-014 (context), Ex. AGY-ST-ALCOHOL-020); Florida DBPR, Emergency Order 2020-09 (June 26, 2020), amendment and rescission (Ex. AGY-ST-ALCOHOL-051 to Ex. AGY-ST-ALCOHOL-053); New Jersey Division of Alcoholic Beverage Control, AN 2020-03, SR 2020-10, SR 2020-21 and AO 2021-01 (Ex. AGY-ST-ALCOHOL-032, Ex. AGY-ST-ALCOHOL-035, Ex. AGY-ST-ALCOHOL-040, Ex. AGY-ST-ALCOHOL-041); New York State Liquor Authority guidance of Mar. 16, 2020 as annotated and of May 19, 2021 (Ex. AGY-ST-ALCOHOL-021 (context), Ex. AGY-ST-ALCOHOL-029 (context)). ↩
31. Louisiana Gaming Control Board, Order Closing Casinos and Order Closing Video Poker Establishments (Mar. 16, 2020) (Ex. AGY-ST-GAMING-RACING-050, Ex. AGY-ST-GAMING-RACING-051); COVID-19 Emergency Orders 4-13 and 15 (Ex. AGY-ST-GAMING-RACING-052 to Ex. AGY-ST-GAMING-RACING-060); Orders 16, 18, 20, 22, 26, 28 and 29 (Ex. AGY-ST-GAMING-RACING-061, Ex. AGY-ST-GAMING-RACING-064, Ex. AGY-ST-GAMING-RACING-070, Ex. AGY-ST-GAMING-RACING-072, Ex. AGY-ST-GAMING-RACING-075, Ex. AGY-ST-GAMING-RACING-077, Ex. AGY-ST-GAMING-RACING-078) (Order 29 of Sept. 22, 2021 in force on Sept. 30, 2021); Nevada Gaming Control Board, Notice 2020-23 (Ex. AGY-ST-GAMING-RACING-002) and Notice 2021-71 (July 30, 2021) (Ex. NV-051). ↩
32. Washington Dep't of Labor & Industries, WAC 296-800-14035 and readoptions (Ex. AGY-ST-LABOR-WORKPLACE-050, Ex. AGY-ST-LABOR-WORKPLACE-051 to Ex. AGY-ST-LABOR-WORKPLACE-056, Ex. AGY-ST-LABOR-WORKPLACE-078) (RCW 49.17.180); Virginia Safety & Health Codes Board, 16VAC25-220, Emergency Temporary Standard (July 27, 2020) (Ex. AGY-ST-LABOR-WORKPLACE-001), Final Permanent Standard (adopted Jan. 13, 2021; effective Jan. 27, 2021) and amendments of Sept. 8, 2021 (Va. Code § 40.1-22(6a)), the Board's revocation of the standard adopted Mar. 21-23, 2022 being post-period (Ex. AGY-ST-LABOR-WORKPLACE-043); Cal/OSHA, 8 C.C.R. § 3205 (Nov. 30, 2020) (Ex. AGY-ST-LABOR-WORKPLACE-002) and readoption of June 17, 2021; Oregon OSHA, OAR 437-001-0744 (Nov. 16, 2020; permanent May 4, 2021) (Ex. SEC-09-013, Ex. SEC-09-014), AO 12-2021 (Sept. 14, 2021) (Ex. AGY-ST-LABOR-WORKPLACE-021) and OAR 333-019-1025 (Aug. 13, 2021) (Ex. OR-048); New York HERO Act, Labor Law § 218-b (L. 2021 ch. 105), 12 NYCRR § 840.1 (Aug. 5, 2021), the Commissioner's designation of Sept. 6, 2021 and continuation of Sept. 30, 2021; Michigan MIOSHA Emergency Rules, Coronavirus Disease 2019 (Oct. 14, 2020), as amended and refiled May 24, 2021 and rescinded June 22, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-062). ↩
33. Washington Office of the Insurance Commissioner, Emergency Order 20-01 (Mar. 5, 2020) and its eighteenth extension (Ex. AGY-ST-INSURANCE-BANKING-040, Ex. AGY-ST-INSURANCE-BANKING-046, Ex. AGY-ST-INSURANCE-BANKING-099) (RCW 48.02.060(4)); New York Dep't of Financial Services, 11 NYCRR 229 and 3 NYCRR 119; Texas Dep't of Insurance, Commissioner's Bulletins B-0007-20 and B-0020-21 (Ex. AGY-ST-INSURANCE-BANKING-014, Ex. AGY-ST-INSURANCE-BANKING-022 (context)) (Tex. Ins. Code § 542.059(b)); Board of Governors, Regulation D interim final rule, 85 Fed. Reg. 23445 (Apr. 28, 2020) (Ex. AGY-FED-FINANCIAL-018). ↩
34. Kentucky Public Service Commission, orders of Mar. 16 and Sept. 21, 2020 (Ex. AGY-ST-UTILITIES-HOUSING-AG-001, Ex. AGY-ST-UTILITIES-HOUSING-AG-002) ("utilities shall cease disconnections for non-payment"); New York ch. 108 of 2020 and ch. 106 of 2021 (Ex. AGY-ST-UTILITIES-HOUSING-AG-006, Ex. AGY-ST-UTILITIES-HOUSING-AG-007); California DMV closure and Executive Order N-40-20 ¶ 13 (Ex. AGY-ST-DMV-SOS-RECORDERS-018 (context), Ex. AGY-ST-DMV-SOS-RECORDERS-015 (context), Ex. AGY-ST-DMV-SOS-RECORDERS-076); New York Executive Order 202.7 (Mar. 19, 2020) (Ex. AGY-ST-DMV-SOS-RECORDERS-036) and New Jersey P.L. 2020, c. 26 (Ex. AGY-ST-DMV-SOS-RECORDERS-038) (remote notarization); Massachusetts ch. 20 of 2021, § 7 (Ex. AGY-ST-DMV-SOS-RECORDERS-040) (notarization regime extended to Dec. 15, 2021); Ohio Dep't of Rehabilitation & Correction, contractor rule of Mar. 11, 2020 (Ex. AGY-ST-CORRECTIONS-EMA-GUARD-072, context); Alaska Dep't of Corrections, contract-services suspension (Mar. 18, 2020) (Ex. AGY-ST-CORRECTIONS-EMA-GUARD-087); Illinois State Board of Education, enforcement letter of Aug. 11, 2021 (Ex. AGY-ST-EDUCATION-HIGHER-ED-032) ("has the force of law"; "noncompliance is not an option"); Idaho State Board of Education actions of Mar. 23 and Apr. 6, 2020 (Ex. AGY-ST-EDUCATION-HIGHER-ED-002, Ex. AGY-ST-EDUCATION-HIGHER-ED-003) ("students are not permitted in schools"); Washington Dep't of Fish & Wildlife, statewide fishing closure (Mar. 25, 2020) (Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-043) (RCW 77.12.047); Oregon Dep't of Fish & Wildlife, non-resident closure (Apr. 9-10, 2020) (Ex. AGY-ST-AGRICULTURE-PARKS-WILDLIFE-020) (ORS 496.146). ↩
35. Tex. Gov't Code § 22.0035(b) (Ex. LAW-332); Supreme Court of Texas, Thirty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 21-9078 (July 19, 2021) (Ex. TX-041) and Fortieth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 21-9079 (July 19, 2021; effective Aug. 1, 2021) (Ex. TX-040; Ex. ECO-C-070) ("effective August 1, 2021, and expires October 1, 2021"); Thirty-Eighth Emergency Order, Misc. Docket No. 21-9060 (Ex. ECO-C-069); Forty-Third Emergency Order, Misc. Docket No. 21-9119 (Sept. 21, 2021) (Ex. ECO-C-071); Delaware Supreme Court, Order Declaring a Judicial Emergency (Mar. 13, 2020) and Administrative Order No. 3 (Mar. 22, 2020) (Ex. AGY-ST-COURTS-021, Ex. AGY-ST-COURTS-024) (10 Del. C. §§ 2001-2009; Del. Const. art. IV, § 13); Circuit Court of Cook County, General Administrative Order 2020-07 (Nov. 23, 2020) and 2021 amendments (Ex. AGY-ST-COURTS-033, Ex. AGY-ST-COURTS-034, Ex. AGY-ST-COURTS-035, the last being the amendment entered Oct. 19, 2021 with provisions effective Sept. 7 and Sept. 20, 2021); N.Y. Chief Administrative Judge, AO/68/20 and AO/78/20 (Ex. NY-061, Ex. NY-060) (Judiciary Law § 212); Illinois Supreme Court, M.R. 30370 (Ex. IL-062, Ex. IL-063); Pennsylvania Supreme Court, In re General Statewide Judicial Emergency (Mar. 16, 2020) (Ex. PA-084); New Jersey Supreme Court orders (Ex. NJ-091, Ex. NJ-092); Arizona Supreme Court, Administrative Orders 2020-47 and 2020-48 (Ex. AZ-048, Ex. AZ-049); Florida Supreme Court, AOSC20-13 and AOSC20-17 (Ex. FL-064, Ex. FL-065); Maryland Court of Appeals orders (Ex. MD-092); Minnesota Supreme Court, No. ADM20-8001 (Ex. MN-046, Ex. MN-047); Hawaii Supreme Court orders (Ex. HI-032, Ex. HI-033); Kentucky Supreme Court, Administrative Order 2020-08 (Ex. KY-002); Michigan Supreme Court, Administrative Orders 2020-1 and 2020-2 (Ex. MI-004, Ex. MI-008); Ohio Supreme Court, 2020-Ohio-1166 (Ex. OH-013); Nebraska Chief Justice's administrative orders (Ex. AGY-ST-COURTS-007 to Ex. AGY-ST-COURTS-010). ↩
36. 42 U.S.C. § 264(a) (Ex. LAW-301); 42 U.S.C. § 265 (Ex. LAW-302); 42 U.S.C. § 247d(a) (Ex. LAW-303); Notice 2021-20, Q&A-10, at 928 ("Orders, proclamations, or decrees from the Federal government or any State or local government"). ↩
37. 29 U.S.C. § 655(c)(1) (Ex. LAW-304); 86 Fed. Reg. 32376 (June 21, 2021) (Ex. FED-080). ↩
38. 49 U.S.C. § 114(l)(2)(A) (Ex. LAW-305); Ex. FED-050 to Ex. FED-056. ↩
39. 46 U.S.C. § 70002 (Ex. LAW-363); § 70011(a) (Ex. LAW-364); § 70051 (Ex. LAW-306); § 70034(a) (Ex. LAW-307); 33 C.F.R. §§ 160.105, 160.107, 160.111 (2021) (Ex. LAW-308); Captain of the Port Sector San Francisco, Temporary Final Rule, Safety Zone; COVID-19 NorCal Maritime 2020 (Mar. 19, 2020) (Ex. AGY-USCG-PORTS-009); MSIB 02-20 and Changes 1-5 (Ex. AGY-USCG-PORTS-002 to Ex. AGY-USCG-PORTS-006, Ex. AGY-USCG-PORTS-020, Ex. AGY-USCG-PORTS-022) and MSIB 02-21 Changes 1-3 (Ex. AGY-USCG-PORTS-033, Ex. AGY-USCG-PORTS-037, Ex. AGY-USCG-PORTS-038), Marine Safety Information Bulletins implementing the CDC order and the Coast Guard's own rules, cited as context and never as orders; Treasury and CBP, Temporary Postponement of the Time to Deposit Certain Estimated Duties, Taxes, and Fees, 19 C.F.R. § 24.1a (Apr. 20, 2020) (Ex. AGY-USCG-PORTS-066). ↩
40. 42 U.S.C. § 1320b-5(b) (Ex. LAW-309); CMS, § 1135 blanket waivers (Ex. FED-160); CMS-3401-IFC, 42 C.F.R. § 483.80(h) (Sept. 2, 2020) (Ex. FED-092); CMS-5531-IFC, 42 C.F.R. § 483.80(g) (May 8, 2020) (Ex. FED-091); CMS-3414-IFC, 42 C.F.R. § 483.80(d)(3), 86 Fed. Reg. 26306 (May 21, 2021) (Ex. FED-094); QSO-20-39-NH (rev. Apr. 27, 2021) (Ex. FED-156). ↩
41. 50 U.S.C. § 4511(a) (Ex. LAW-310); Executive Orders 13909, 13910, 13911 and 13917 (Ex. FED-070 to Ex. FED-073); HHS, Notice of Designation of Scarce Materials, 85 Fed. Reg. 17592 (Mar. 25, 2020) (Ex. FED-074); FEMA, Prioritization and Allocation of Certain Scarce or Threatened Health and Medical Resources for Domestic Use, 44 C.F.R. part 328, 85 Fed. Reg. 20195 (Apr. 10, 2020) (Ex. FED-075); 8 U.S.C. § 1182(f) (Ex. LAW-314); 19 U.S.C. § 1318(b)(1)(B)-(C) (Ex. LAW-315); 42 U.S.C. § 5191(a) (Ex. LAW-316); FEMA, EM declarations of Mar. 13, 2020 (Ex. FED-006). ↩
42. Families First Coronavirus Response Act, Pub. L. 116-127, §§ 3102, 5102 (Mar. 18, 2020) (Ex. FED-170); 29 C.F.R. part 826, 85 Fed. Reg. 19326 (Apr. 6, 2020) (Ex. FED-171); revised rule, 85 Fed. Reg. 57677 (Sept. 16, 2020) (Ex. FED-172); see Ex. AGY-FED-LABOR-IMMIGRATION-001 (the temporary rule, effective Apr. 2 through Dec. 31, 2020). ↩
43. Board of Governors, Regulation D interim final rule, 85 Fed. Reg. 23445 (Ex. AGY-FED-FINANCIAL-018); appraisal-deferral interim final rules, 85 Fed. Reg. 21312 and 22014 (Ex. AGY-FED-FINANCIAL-017, Ex. AGY-FED-FINANCIAL-040); OCC Bulletin 2020-51 and OCC meetings interim final rule, 85 Fed. Reg. 31943 (Ex. AGY-FED-FINANCIAL-019 (context), Ex. AGY-FED-FINANCIAL-020) (annual meetings prevented "as a result of stay-at-home and similar orders"); SEC Release Nos. 34-88318 (Mar. 4, 2020) and 34-88465 (Mar. 25, 2020) (Ex. AGY-FED-FINANCIAL-050, Ex. AGY-FED-FINANCIAL-056) ("limited access to facilities, support staff, and professional advisors"); NCUA Letters 20-FCU-02 and 20-FCU-04 (Ex. AGY-FED-FINANCIAL-030 (context), Ex. AGY-FED-FINANCIAL-047 (context)). ↩
44. U.S. Dep't of State, suspension of routine visa services (Mar. 20, 2020) (Ex. FED-327) and phased resumption (Ex. AGY-FED-LABOR-IMMIGRATION-061, Ex. FED-328); USCIS office closure (Mar. 18, 2020) and reopening (June 4, 2020) (Ex. FED-324, Ex. FED-325); Federal Register statement that USCIS "temporarily suspended all face-to-face service" (Ex. AGY-FED-LABOR-IMMIGRATION-049); DHS, Form I-9 remote-inspection regime (Ex. ECO-C-126); OSHA DIR 2021-01 (Mar. 12, 2021) (Ex. FED-082) and DIR 2021-03 (July 7, 2021) (Ex. FED-083) (National Emphasis Program by NAICS code); Proclamations 10014 and 10052 (Ex. FED-210, Ex. FED-211; Ex. AGY-FED-LABOR-IMMIGRATION-007, Ex. AGY-FED-LABOR-IMMIGRATION-008). ↩
45. HHS Office for Civil Rights, Notification of Enforcement Discretion for Telehealth (Mar. 17, 2020), 85 Fed. Reg. 22024 (Ex. FED-194; Ex. AGY-FED-HEALTH-OTHER-001); Department of Veterans Affairs, vaccination mandates of July 26 and Aug. 13, 2021 (Ex. AGY-FED-HEALTH-OTHER-069, Ex. AGY-FED-HEALTH-OTHER-070) ("volunteers and contractors who work in VHA facilities"); Social Security Administration, field-office closure (Mar. 17, 2020) and reopening (Apr. 7, 2022) (Ex. AGY-FED-HEALTH-OTHER-086 (context), Ex. AGY-FED-HEALTH-OTHER-087 (context)); Bureau of Prisons, suspension of visits, volunteer and contractor access (Mar. 13, 2020) and non-contact resumption (Oct. 3, 2020) (Ex. AGY-FED-HEALTH-OTHER-072, Ex. AGY-FED-HEALTH-OTHER-078); FDA, revocations of the imported-respirator and decontamination EUAs (June 30 and July 6, 2021) and narrowing of the NIOSH respirator EUA (July 12, 2021) (Ex. AGY-FED-HEALTH-OTHER-048 to Ex. AGY-FED-HEALTH-OTHER-052). ↩
46. National Park Service, Yellowstone and Grand Teton closure (Mar. 24, 2020) and phased reopening (Ex. AGY-FED-LANDS-SCIENCE-COURTS-037 (context), Ex. AGY-FED-LANDS-SCIENCE-COURTS-038 (context)); Yosemite day-use reservation orders (May 21-Sept. 30, 2021) (Ex. AGY-FED-LANDS-SCIENCE-COURTS-043, context); U.S. Tax Court, Administrative Order 2020-02 (Ex. AGY-FED-LANDS-SCIENCE-COURTS-005) and orders of 2021 (Ex. AGY-FED-LANDS-SCIENCE-COURTS-007, Ex. AGY-FED-LANDS-SCIENCE-COURTS-008, Ex. AGY-FED-LANDS-SCIENCE-COURTS-013 (context)); Judicial Conference of the United States, CARES Act § 15002 finding (Mar. 29, 2020) (Ex. FED-295); N.D. Ill., General Order 20-0012 (Mar. 12, 2020) (Ex. FED-338) through Amended General Order 21-0006 (Sept. 15, 2021; eff. Sept. 20) (Ex. FED-298) and General Order 21-0033 (Sept. 20, 2021) (Ex. FED-300). ↩
47. Department of Defense, memorandum of the Secretary of Mar. 15, 2021 (travel restrictions "until further notice") (Ex. FED-280); Department of Defense, weekly Installation Status Updates (Ex. AGY-DEFENSE-GUARD-116 (context), Ex. AGY-DEFENSE-GUARD-050 (context), Ex. AGY-DEFENSE-GUARD-117 (context) to Ex. AGY-DEFENSE-GUARD-119 (context), Ex. AGY-DEFENSE-GUARD-078 (context), Ex. AGY-DEFENSE-GUARD-087 (context)); Department of Defense, memorandum on the essential critical infrastructure workforce of the industrial base (Mar. 20, 2020) (Ex. AGY-DEFENSE-GUARD-037) ("expected to maintain their normal work schedules"); Department of Defense finding that contractors were "struggling to maintain a mission-ready workforce due to work site closures, personnel quarantines, and state and local restrictions on movement" (Ex. AGY-DEFENSE-GUARD-061); Department of Defense orders of July 28, Aug. 24 and Sept. 8, 2021 (Ex. AGY-DEFENSE-GUARD-081, Ex. AGY-DEFENSE-GUARD-114, Ex. AGY-DEFENSE-GUARD-086). ↩
48. Limit, American Heritage Dictionary (5th ed.) (Ex. LAW-060). ↩
49. Commerce, Merriam-Webster.com (capture of March 2020) (Ex. LAW-043); Commerce, American Heritage Dictionary (5th ed.) (Ex. LAW-055); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90 (1824) (Ex. LAW-022). ↩
50. Travel, Merriam-Webster.com (capture of March 2020) (Ex. LAW-050); Meeting, Merriam-Webster.com (capture of March 2020) (Ex. LAW-051). ↩
51. Oregon Executive Order 20-12 (Mar. 23, 2020) (Ex. OR-007) ("Work in offices is prohibited whenever telework and work-at-home options are available"); see Oregon Executive Orders 20-27, 20-65 and 20-66 (Ex. OR-020, Ex. OR-033, Ex. OR-035) (the prohibition renewed statewide Nov. 18-Dec. 2, 2020 and at Extreme Risk from Dec. 3, 2020); New York Executive Order 202.8 (Mar. 20, 2020) (Ex. NY-002) (100 percent reduction of the in-person workforce of every non-essential business); Minnesota Emergency Executive Order 20-20 (Mar. 25, 2020) (Ex. MN-010) ("All workers who can work from home must do so"); Pennsylvania Order of Nov. 23, 2020 (Ex. PA-022) ("Unless impossible, all businesses must conduct their operations remotely"). ↩
52. Notice 2021-20, Q&A-10, Example 3, at 928. ↩
53. Tri-State at 8-9 (Black's Law Dictionary (12th ed. 2024) and American Heritage Dictionary (5th ed. 2018) definitions agreed by the parties; the United States' definitions recited from ECF No. 28 at 8); Suspension, Suspend, Partial, Merriam-Webster.com (captures of March 2020) (Ex. LAW-045, Ex. LAW-047); American Heritage Dictionary (5th ed.) (Ex. LAW-056, Ex. LAW-057). ↩
54. Tri-State at 9 (citing Lamie v. United States Trustee, 540 U.S. 526, 534 (2004)). ↩
55. Partially, Merriam-Webster.com ("to some extent : in some degree"); Operation, Merriam-Webster.com ("method or manner of functioning"); see Partial, Merriam-Webster.com (capture of March 2020) (Ex. LAW-047); Partial, American Heritage Dictionary (5th ed.) (Ex. LAW-057). ↩
56. Tri-State at 10-11 ("Defendant attempts to conflate 'more than nominal' to suggest that it means 'significant' ... However, the plain language and ordinary meaning of partial and nominal do not suggest either of those interpretations."). ↩
57. Notice 2021-20, Q&A-22, at 932; id., Q&A-16(4), at 930 ("some adjustment period is expected"; a "significant delay ... in moving operations to comparable telework" is itself "a partial suspension during that transition period"); Tri-State at 9, 19. ↩
58. Tri-State at 17 ("Both Plaintiff and Defendant agree that the plain meaning of 'due to' is 'because of.' ECF Nos. 28 at 15; 32 at 19-21."; "The meaning is plain and unambiguous. The Court is not required to interpret this statute further."). ↩
59. Burrage v. United States, 571 U.S. 204, 210-13 (2014) (Ex. LAW-015); id. at 205 (syllabus) (declining "to adopt the Government's permissive interpretation"). ↩
60. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (Ex. LAW-016); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47, 350, 360 (2013) (Ex. LAW-017); Bostock v. Clayton County, 590 U.S. 644, 656 (2020) (Ex. LAW-012); Thomas v. CalPortland Co., 993 F.3d 1204, 1208-09 (9th Cir. 2021) (Ex. LAW-077). ↩
61. Tri-State at 18-20 (citing Burrage, 571 U.S. at 216; Gross, 557 U.S. at 176; Thomas, 993 F.3d at 1209; EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015)) ("Defendant's interpretation improperly adds words into the statute."; "Accordingly, the Court recognizes that 'due to' requires 'but-for' causation."; "The Proclamation required Plaintiff to only employ vaccinated individuals"; the changes "were not voluntary"). ↩
62. Tri-State at 20-21. ↩
63. Tri-State at 12. ↩
64. Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (Ex. LAW-010) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981) (Ex. LAW-018)); Tri-State at 16, 17-18 (applying Germain). ↩
65. Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (Ex. LAW-011); Tri-State at 8-9. ↩
66. Bostock, 590 U.S. at 654 (Ex. LAW-012); Merriam-Webster.com captures of March 2020 for "commerce," "order," "suspend," "suspension," "partial," "travel" and "meeting" (Ex. LAW-043 to Ex. LAW-047, Ex. LAW-050, Ex. LAW-051); American Heritage Dictionary (5th ed.) entries for "commerce," "suspend," "partial" and "order" (Ex. LAW-055 to Ex. LAW-058). ↩
67. EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015) (Ex. LAW-013); Tri-State at 19. ↩
68. Russello, 464 U.S. at 23 (Ex. LAW-014); CARES Act § 2301(c)(2)(A)(ii)(II), 134 Stat. at 348 (Ex. LAW-001); I.R.C. § 3134(c)(2)(A)(ii)(II), 135 Stat. at 177 (Ex. LAW-003). ↩
69. Tri-State at 12-13. ↩
70. Tri-State at 11. ↩
71. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394, 412 (2024) (Ex. LAW-008); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (Ex. LAW-009). ↩
72. Lemus-Escobar v. Bondi, 158 F.4th 944, 960 (9th Cir. 2025) (Ex. LAW-079), as quoted in Tri-State at 7-8. ↩
73. Doc. 44 at 31 & n.8; Br. for Appellees at 58; Doc. 49 at 27. ↩
74. Tri-State at 9-10. ↩
75. Sundancer Pools, Inc. v. United States, No. 25-1291T, at 2 (Fed. Cl. June 23, 2026) (Ex. LAW-028). The three faces: Notice 2021-20, 2021-11 I.R.B. 922, Q&A-11, at 928 ("under the facts and circumstances"); Doc. 44 at 14 and Br. for Appellees at 38 (safe harbor); IRS, Frequently Asked Questions About the Employee Retention Credit, Q5/A5 (Ex. GOV-003, at 7), Office of Chief Counsel, IRS, Mem. AM 2023-007, at 12 (Ex. GOV-004) and the Service's form letters (the floor); see The IRS: the fourteen grounds. ↩
76. Michigan Executive Order 2020-42 (Apr. 9, 2020) (Ex. SEC-07-022); see Notice 2021-20, Q&A-11, at 928 (excluding only an employer whose order "allows all of the employer's operations to remain open," and treating a compelled closure "for a period of time during normal working hours" as a partial suspension); id., Q&A-17, Example 4, at 930 (an essential hospital partially suspended by the order that "prevents Employer H from performing elective and non-urgent medical procedures"). ↩
77. Notice 2021-20, Q&A-15, at 929 (second paragraph and Examples 2 and 3); Q&A-16(3), at 929-30 ("If 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."); see Doc. 44 at 15 ("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"). ↩
78. Br. for Appellees at 41; Notice 2021-20, Q&A-10, at 928; Q&A-13, Example, at 929 ("Due to a governmental order that limits travel and requires members of the community to stay at home"); Doc. 44 at 30 (mask and operational-hours orders "would also be considered"). ↩
79. Notice 2021-20, Q&A-14, at 929 (a suspension "not due to a governmental order"); Tri-State at 20 (the compelled changes "were not voluntary"). ↩
80. Tri-State at 9-11; Notice 2021-20, Q&A-18, at 930 ("Examples of these modifications include: limiting occupancy to provide for social distancing, requiring services to be performed only on an appointment basis (for businesses that previously offered walk-in service), changing the format of service (for example, restrictions on buffet or self-serve, but not prepackaged or carry-out), or requiring employees and customers to wear face coverings."). ↩
81. IRS, COVID-19-Related Employee Retention Credits: Determining When an Employer's Trade or Business Operations are Considered to be Fully or Partially Suspended Due to a Governmental Order FAQs, and FAQ index, as posted Apr. 29, 2020 (Wayback Machine captures of May 6 and May 18, 2020) (FAQs 28, 30, 31, 32, 33, 34 and 35-38); every FAQ page carried the legend that the FAQs "may not be relied upon as legal authority" and "cannot be used to support a legal argument in a court case." ↩
82. IRS FAQ page as captured Jan. 15, 2021, FAQs 30, 33, 34 and 35 marked "(updated June 19, 2020)". ↩
83. Notice 2021-20, Q&A-10, -11, -13, -16, -17, -18, at 927-31; IRS, IR-2021-48 (Mar. 1, 2021) ("similar to the information in the employee retention credit FAQs, but includes clarifications"). ↩
84. IRS, FS-2025-07 (Oct. 2025) (FAQs "will not be relied on or used by the IRS to resolve a case"; "if a FAQ turns out to be an inaccurate statement of the law as applied to a particular taxpayer's case, the law will control the taxpayer's tax liability"); Notice 2021-20, § II, at 922 ("incorporates the information provided in the FAQs"). ↩
85. IRS, Frequently Asked Questions About the Employee Retention Credit, Q5/A5 (added Sept. 14, 2023) (Ex. GOV-003, at 7); Office of Chief Counsel, IRS, Mem. AM 2023-007, at 12 (Oct. 18, 2023) (Ex. GOV-004); Doc. 44 at 14; Br. for Appellees at 38. ↩
86. Pub. L. 117-2, § 9651, 135 Stat. at 177, 182 (Ex. LAW-003); Pub. L. 117-58, § 80604, 135 Stat. at 1341 (Ex. LAW-004). ↩
87. Notice 2021-49, 2021-34 I.R.B. 316, § I, at 316, § III.D, at 317-18 (recovery startup businesses defined by the third element that the employer "is not otherwise an eligible employer due to a full or partial suspension of operations or a decline in gross receipts"); Notice 2021-65, 2021-51 I.R.B. 880, § III.A, at 881; Notice 2021-23, 2021-16 I.R.B. 1113, § II, at 1113 ("the applicable provisions of Notice 2021-20 ... continue to apply to employee retention credits for the first and second calendar quarters of 2021"); Instructions for Form 941-X (Rev. July 2021 and Rev. Apr. 2022), line 31b (a recovery startup business "[i]sn't otherwise eligible ... because business operations aren't fully or partially suspended due to a governmental order"). ↩
88. The Service's form language on the suspension prong in Letters 105C issued since 2024; see Opening Brief of Appellant at 11-12, Stenson Tamaddon, LLC v. IRS, No. 25-4217 (9th Cir. Sept. 17, 2025) (record examples of letters and Forms 886-A deciding claims on the Notice); Nat'l Taxpayer Advocate, blog of Apr. 27, 2026 (the 2024 letters were "based on the results of risk filter analyses rather than a prior examination"); Nat'l Taxpayer Advocate, blog of Aug. 21, 2024 ("the IRS did not subject disallowed ERC claims to an examination; rather, the IRS conducted a risk-scoring analytic process"). ↩
89. Fed. R. Evid. 201(b), (c)(2), (d) (Ex. LAW-024). ↩
90. Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018) (Ex. LAW-023) (citing Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (Ex. LAW-073)); South Bay United Pentecostal Church v. Newsom, 985 F.3d 1128, slip op. at 7 n.1 (9th Cir. 2021), injunction granted in part, 141 S. Ct. 716 (2021); Brach v. Newsom, 6 F.4th 904, slip op. at 15-16 n.5 (9th Cir. 2021), vacated on reh'g en banc, 38 F.4th 6 (9th Cir. 2022); Clark v. Governor of New Jersey, 53 F.4th 769, slip op. at 8 n.5 (3d Cir. 2022) (Ex. LAW-032); I Health, Inc. v. United States, No. 25-1315T, at 2-3, 9 (Fed. Cl. July 23, 2026) (Ex. LAW-025). ↩
91. Welch v. Helvering, 290 U.S. 111, 115 (1933) (Ex. LAW-021); Delaney v. Commissioner, 743 F.2d 670, 671 (9th Cir. 1984) (Ex. LAW-070); 26 U.S.C. § 7454(a) (Ex. LAW-038); Tax Ct. R. 142(b); Treas. Reg. § 1.6662-4(d)(2)-(3) (Ex. LAW-036); Treas. Reg. § 1.6662-3(b)(3) (Ex. LAW-035); 26 U.S.C. § 6664(c)(1) (Ex. LAW-039); 26 U.S.C. § 6676(a), as amended by Pub. L. 119-21, § 70605(f) (Ex. LAW-040); 26 U.S.C. § 6702(a) (Ex. LAW-041); Notice 2010-33, 2010-17 I.R.B. 609 (Ex. LAW-026); Fed. R. Evid. 801(d)(2); Kattar v. United States, 840 F.2d 118, 130-31 (1st Cir. 1988) (Ex. LAW-061); United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989) (Ex. LAW-062); New Hampshire v. Maine, 532 U.S. 742, 749-51 (2001) (Ex. LAW-019); Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782-83 (9th Cir. 2001) (Ex. LAW-064); IRM (CCDM) 32.2.2.10(3)-(4) (Ex. GOV-006). ↩