The interconnected economy and the broken leg
Two propositions complete the proof. The first is that the Suspension Clause reaches orders on the industry's counterparties, because an order that closed the restaurant, the consulate, the school or the border limited the commerce, travel or meetings on which this industry's operation depended, and the statute asks nothing about the order's addressee; the United States has acknowledged as much, and the Service's own Notice applies the logic to suppliers. The second is that a suspension an order caused continues, because of that order, for the period the order's compelled dismantling took to reverse; the clause's grammar, Tri-State's definition, the Notice's own whole-quarter and transition-period rules and the orders' own phase steps establish it, and for this industry the restoration had not occurred when the general restrictions ended in June and July 2021. This section states both propositions and applies them.
The interconnected economy
The text and the admission
The clause reaches "orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes)." Commerce is "intercourse," "the commercial intercourse between nations, and parts of nations, in all its branches."230 An order that closed a restaurant limited the commerce between the restaurant and the packer that supplied it; an order that closed a consulate limited the travel of the worker the grower had hired; an order that closed a school limited the meetings on which the worker's attendance depended; an order that limited a land border to essential travel limited the commerce and travel of every buyer, trucker and worker who crossed it. The United States told the Ninth Circuit the same thing:
a business may be suspended 'due to' a government order addressing a third party (such as an order that suspends the operations of a supplier of the business)
Br. for Appellees at 41
The Notice's Q&A-12 states the rule for suppliers, and its reasoning, that an order on someone else can suspend the employer "due to the governmental order," is the statute's causation logic and is not confined to suppliers.231 Q&A-13's attempt to exclude orders on customers is answered in the answers section below; it has no source in the text, and its own example acknowledges that the order "limits travel."232
Mechanism one: the supply chain and the borders
The industry's parts, packaging, chemicals and equipment come from plants that the States of Michigan, Pennsylvania, New York, New Jersey, Ohio, Indiana, Wisconsin, Washington and California closed or confined to CISA-listed operations from March 19-24, 2020 until May and June 2020, and from plants in Ontario and Mexico closed by orders of March 24 and March 30-31, 2020 until June 1, 2020.233 The industry's protective equipment came from a market the federal government placed under criminal hoarding controls from March 25, 2020 to November 15, 2021 and export allocation from April 7, 2020 to June 30, 2021.234 Its exports and imports moved through land borders limited to essential travel from March 21, 2020 to November 8, 2021, through ports whose congestion the Federal Maritime Commission, the Federal Reserve and the White House recorded, and past a Title 42 order reassessed and continued in August 2021.235 Its 2021 equipment and parts came through a semiconductor shortage the United States found in June 2021 to have been "created" by the pandemic and to be "ongoing" in September 2021.236 Each of those instruments is an order limiting commerce or travel; each reached the industry through a counterparty; and Q&A-12's own words treat the result as a suspension "due to the governmental order."
Mechanism two: the workforce, the schools and child care
Every worker in this industry is a parent, a commuter and a person subject to isolation and quarantine. The school closures of March 2020 reached 55.1 million students in 124,000 schools; forty-eight States kept them closed through the 2019-20 year; the 2020-21 year opened remote or hybrid by order in most States; child care was closed to all but essential workers' children in the spring of 2020; the FFCRA made the resulting absence a paid, job-protected entitlement that every employer under 500 employees funded from April 1 to December 31, 2020; the State occupational-safety standards made exclusion of exposed workers a legal duty from July 27, 2020 (Virginia), November 16, 2020 (Oregon) and November 30, 2020 (California); the federal conveyance order governed every commute by bus from February 1, 2021; the 2021-22 school year opened under face-covering and quarantine orders in eighteen States and the District; and the vaccination mandates of July to September 2021 removed unvaccinated workers from hospitals, schools and child care or placed them on weekly testing, with deadlines inside the quarter.237 For this industry the mechanism operated with special force because the seasonal workforce is admitted through consulates, petitions and ports that closed or were conditioned in every quarter, and because the workforce lives in housing and rides in vehicles that the States regulated directly.
Mechanism three: travel, tourism and gatherings
The stay-at-home orders of forty-two States and the District confined the households that buy food at retail; the entry proclamations and land-border notifications barred the foreign buyers, inspectors, engineers and tourists who take the industry's product at export and in the restaurants and hotels of every port and border city; the gathering caps closed the fairs, livestock shows, auctions and festivals through which livestock and specialty crops are sold (see the Library's meetings collection); and the vaccination-proof orders of August and September 2021 conditioned the dining rooms of the largest markets within weeks of their first full-capacity operation since March 2020.238
Mechanism four: courts and public offices
The industry's contracts, leases, liens, permits and disputes ran through courts and offices that suspended jury trials, closed their doors to walk-in business and moved to remote proceedings under judicial emergency orders from March 2020 into the fall of 2021; USDA Service Centers went to phone appointments from March 23, 2020; USCIS closed to the public from March 18 to June 4, 2020 and reopened under conditions; the consulates closed on March 20, 2020 and resumed post by post.239
Mechanism five: transit
Transit agencies cut service under emergency declarations in the spring of 2020, capped riders per vehicle, moved to rear-door boarding and required face coverings; from February 1, 2021 the federal conveyance order and the TSA's directives governed every bus, train, ferry and hub in the country, and every employer-provided crew vehicle not operated solely for personal, non-commercial use.240
Mechanism six: health care as counterparty
The industry's workers were treated in hospitals and clinics that cancelled elective procedures by order in the spring of 2020, that operated under visitor, testing and staffing orders throughout, and that were placed under staff-vaccination mandates with deadlines inside the third quarter of 2021; the Federal Reserve attributed part of the "extensive labor shortages" of September 2021 to child care.241
The counterparty orders as orders
Each of the instruments above is an order of an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19. This analysis treats them as such, under the statute's words, and cites Q&A-12 as the Service's own confirmation that an order addressed to a third party suspends the employer whose operation depends on it. The Service's AM 2023-005 would convert Q&A-12 into "a narrow, limited exception" with an alternate-supplier element and a requirement that the employer produce the supplier's order; Q&A-12 contains none of those words, the Chief Counsel memorandum "may not be used or cited as precedent," and the answers section below addresses it.242
The broken leg
The grammar
The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended." Congress did not write "orders in effect during the calendar quarter," and a reading that requires an order to be in force on each day of the suspension adds words to the statute in the manner Abercrombie and Tri-State forbid.243 The question the text asks is whether, during the quarter, the operation was suspended, and whether the suspension was because of orders.
The definition and the causation rule
A suspension is "[t]he act of temporarily delaying, interrupting, or terminating something," or "[t]he state of such delay, interruption, or termination," and a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business."244 A delay is a state that persists after the event that caused it. "Due to" is but-for causation, which asks only whether the delay would have occurred in the absence of the order.245 Where an order compelled an employer to dismantle a portion of its operation, and the operation was still delayed in a later quarter because the dismantling had not been restored, the delay in that quarter is a suspension due to the order: but for the order, the operation would not have been dismantled, and the delay would not exist.
The Notice's own recognition
Q&A-22 provides that "[a]n employer with business operations that are fully or partially suspended due to a governmental order during a portion of a calendar quarter is an eligible employer for the entire calendar quarter."246 Q&A-16(4) recognizes that a suspension an order caused persists after the order operates: "some adjustment period is expected," and where an employer "incurs a significant delay ... in moving operations," its operations "may be deemed subject to a partial suspension during that transition period"; the two-week illustration is offered "for example."247 The Notice thus reads "during the calendar quarter" as this analysis does, and it recognizes that the transition an order compels is itself a suspension the order caused. Together they are the Service's own confirmation of the analysis.
What the orders compelled this industry to dismantle
The orders of 2020 and early 2021 compelled four dismantlings, each fixed by the orders' own terms. First, the food-service channel: every State but South Dakota closed dine-in service by order between March 15 and April 3, 2020, most by March 24, South Dakota's cities closed theirs by ordinance, and the Department of Agriculture found that "many farmers markets, restaurants, and schools have temporarily or permanently closed, thus causing significantly decreased demand"; the industry's contracts, specifications, pack sizes, lines and distribution to that channel were dismantled in April 2020 and converted, where they could be, to retail.248 Second, the labor camp: Washington's rules barred top bunks and required distancing in every facility from May 18, 2020; Oregon's rules regulated the camp from May 11 to October 24, 2020 and again from April 30 to October 24, 2021; California's from November 30, 2020; camp capacity was cut and stayed cut.249 Third, the seasonal recruitment cycle: the consulates closed March 20, 2020, resumed post by post from July 15, 2020 and remained limited through 2021; the H-2B suspension ran from June 24, 2020 to March 31, 2021; the H-2A rules were rewritten three times; a cycle that begins with a labor certification months before the season was broken for the 2020 season and conditioned for 2021.250 Fourth, the line: the plants that closed in April 2020 reopened under Executive Order 13917's enforced guidance and their States' standards with six-foot spacing, barriers, staggered shifts and reduced speed, and no order permitted the line to return to its 2019 configuration before September 30, 2021.251
The restoration arithmetic
The orders' own phase steps fix the time the restoration took. The food-service channel reopened at 25 percent in May and June 2020, 50 percent in the summer, closed again in the largest markets from November 2020 to January and February 2021, returned to 25 and 35 percent in New York City on February 12 and 26, 2021 and 50 percent in March, and reached full capacity only on May 27, 2021 in Minnesota, June 11 in Illinois, June 15 in New York and California, June 30 in Oregon and Washington and July 1 in New Mexico; Los Angeles County's steps ran from outdoor dining on January 29, 2021 through 25 percent on March 15, 50 percent on April 5 and May 6 and full capacity on June 15.252 A packer whose food-service lines were converted to retail in April 2020 was, on July 1, 2021, at most three weeks into the first period in which its customers could lawfully buy at full volume, and its restaurant customers were placed under vaccination-proof orders in New York City on August 17, New Orleans on August 16 and San Francisco on August 20, 2021 and under universal indoor face-covering orders, airborne-transmission controls binding every business, in seven States and the District (Nevada, Louisiana, Oregon, New Mexico, Washington, Illinois and Hawaii, whose statewide requirement never lapsed) and more than forty counties and cities between July 17 and September 14, 2021, with California's orders reaching the unvaccinated indoors and everyone in K-12, health-care and transit settings.253 The labor camp was never restored during the period: the Washington rules were readopted on May 28 and June 1, 2021 for a term running into the last week of September; the Oregon rule ran to October 24, 2021; the California standard ran through the period.254 The recruitment cycle for the 2021 season was run against consulates operating post by post, an H-2A rule whose window closed June 16, 2021, an H-2B suspension that ended only on March 31, 2021 and a supplemental H-2B rule that ran to September 30, 2021.255 The line was, in the third quarter of 2021, still under Executive Order 13917, still under a national emphasis program that named its industry by code, and, in California, Oregon, Virginia and New York, still under a standard requiring the plan, the screening and the exclusion.256 The Department of Agriculture found, on August 27, 2021, "continuing market disruptions, reduced farm-level prices, and increased production and marketing costs due to COVID-19."257
The instruments still in force
The restoration analysis is one of four pathways, and the finding for each later quarter rests independently on the orders in force in it: the federal general layer (Executive Order 13917, the entry proclamations, the land-border notifications, the Title 42 order, the conveyance order, the testing order, the scarce-materials designation, the national emphasis program, the H-2 rules, the federal workforce orders); the State emergencies and the State occupational-safety, housing and face-covering instruments of California, Oregon, Washington, Virginia, New York, Nevada, Louisiana, Hawaii, New Mexico, Illinois and the District; the metro reinstatements of July to September 2021; the school, child-care and quarantine orders of the 2021-22 year; and the sector regulators' instruments, each treated as the order it is in the quarters section.258 This analysis never says that an expired order suspended anyone by its own force in a later quarter. It says that the suspension the order caused continued because of it, for the period the order's compelled dismantling took to reverse, and it lists the orders in force.