The interconnected economy and the broken leg
Two propositions complete the analysis. First, an order on a counterparty of this industry, on the hospital that refers, the school that keeps an aide's children, the transit system that carries her, the household that receives her, or the payer that reimburses her employer, is an order "limiting commerce, travel, or group meetings" that suspends the operation of the employer whose function it reaches, and the United States has said so. Second, a quarter qualifies when an order in force within it compels a delay, interruption or termination of a portion of the operation within it, whatever the date the order issued and whatever the date the change began; the statute asks whether the operation "is ... suspended during the calendar quarter," not whether the order was issued during it. Both propositions rest on orders in force in the quarter for which they are stated. And where an order's compelled dismantling of a function outlasted the order, the suspension that dismantling caused continued because of the order, on Tri-State's definition of a suspension as a "delay" and on but-for causation, for the period the orders' own reopening steps took to reverse it. This analysis never says that an expired order suspended anyone by its own force; it says the suspension the order caused continued because of it, and it lists the orders that were in force.
The interconnected economy
The text and the United States' account
The clause reaches "orders ... limiting commerce, travel, or group meetings," and says nothing about whose commerce, whose travel or whose meetings. The United States has represented to the Ninth Circuit that an order on a third party can suspend a business:
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
It has represented in the same brief that the Notice's supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier," and in the District Court that the qualifying orders include those that "limit hours of operation" and that address "space" and "face masks."196 The Notice's own list includes a stay-at-home proclamation and a curfew, each an order on the public that suspends the business whose customers or workers it confines.197 Tri-State applies but-for causation: where the order is a but-for cause of the change in the employer's operation, the change is "due to" the order, and the statute does not ask whether the order was addressed to the employer.198
The suppliers of this industry
The hospital supplies the referral; the school and the child-care center supply the aide's availability; the transit system supplies her transportation; the household supplies the workplace; the distributor supplies the personal protective equipment; and the Medicare and Medicaid programs supply the revenue. Each was under a current order in each quarter. The hospitals were ordered to defer elective procedures in the spring of 2020 in nineteen States and New York and in Pennsylvania from November 23, 2020 through August 23, 2021, to furnish a negative test before discharge to a New York nursing home from May 10, 2020, and to follow the surge-transfer and crisis-standards rules of Louisiana, Idaho and Alaska and Washington's nursing-home transfer and discharge proclamation in the third quarter of 2021.199 The schools were closed in every State in the spring of 2020, opened remotely or in hybrid form in much of the country in the fall of 2020, and in the third quarter of 2021 were under face-covering, vaccination and quarantine orders in New Jersey, Illinois, Oregon, New Mexico, Louisiana, Washington, California, Kentucky, Harris County, Oakland County and Wayne County.200 The transit systems were under the federal conveyance order on every day from February 1 through September 30, 2021, and under service reductions and capacity limits in 2020.201 The household was under the stay-at-home orders in 2020 and under the isolation and quarantine orders of the counties and States throughout.202 The distributors were under the Defense Production Act allocation orders of April 2020 and the State personal protective equipment reporting and distribution orders.203 The payers rewrote their terms by interim final rule and Appendix K.204 Chief Counsel's memorandum of June 30, 2023, which addressed a supplier suffering "residual delays" after its orders had ended, has no application to a supplier under a current order; every supplier order cited here was in force in the quarter for which it is cited.205
The customers of this industry
The patients and residents were confined by the stay-at-home orders of 2020, and their families were excluded from the buildings by the visitation orders of every quarter. Q&A-13, which excludes a suspension claimed only because customers were confined, does not reach an employer whose own operations were ordered, and every employer in this industry was ordered directly; where the customer's confinement is cited, it is cited as an order "limiting commerce, travel, or group meetings" under Q&A-10's own list and the United States' account of third-party orders.206
Continuing suspension
The clause is written in the present tense and keyed to the quarter: the operation "is fully or partially suspended during the calendar quarter due to orders." The object of the inquiry is the state of the operation in the quarter and its cause. An order issued in March 2020 and in force in July 2021 is an order in force in the third quarter of 2021; a change in the manner of operation that began in March 2020 and was still compelled in July 2021 is a partial suspension during the third quarter of 2021. Nothing in the clause requires that the order or the change originate in the quarter, and the Notice agrees: Q&A-22 provides that an employer whose operations are suspended for part of a quarter is an eligible employer for the whole quarter, and the transition sentence of Q&A-16 measures the employer's adjustment from the order's effect, not from its date.207
The agreed definition
The United States agreed in Tri-State that a suspension is "[t]he act of temporarily delaying, interrupting, or terminating something," and the court held that a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business."208 A delay is present on every day it lasts; an interruption is present on every day the interrupted function is not performed; a termination of a portion is present on every day the portion is not restored. An order that terminated the visitation function on March 13, 2020 and permitted its conditional restoration on September 17, 2020, March 10, 2021 and April 27, 2021 kept the function terminated or conditioned on every day between those dates, and the function was suspended "during" each quarter those dates span because of the order that fixed them.209
The arithmetic of the dismantling
The orders on this industry were not lifted on a date. They were dismantled by phase over eighteen months, and each phase was itself an order. The visitation function: barred except for compassionate care from March 13 to September 17, 2020 (188 days); conditional on fourteen days without a case, no outbreak testing and county positivity under ten percent from September 17, 2020 to March 10, 2021 (174 days); permitted "at all times" with exceptions for unvaccinated residents in high-positivity, low-vaccination counties, for confirmed cases and for quarantine from March 10, 2021 to November 12, 2021 (247 days), a period that includes all of the second and third quarters of 2021.210 The testing function: universal testing by State order from April 29, 2020; by federal condition of participation on a positivity-keyed schedule from September 2, 2020 to September 10, 2021 (373 days); on a transmission-keyed schedule with a vaccination exemption from September 10, 2021.211 The dining and activities function: cancelled March 13, 2020; restored by phase under State orders adopting the May 18, 2020 framework from June 2020; conditioned by outbreak and quarantine rules through November 12, 2021.212 The admissions function: conditioned on hospital certification and a negative test in New York from May 10, 2020; on Phase 0 and phased resumption in New Jersey from August 20, 2020 to January 11, 2022; on the fourteen-day observation of new admissions under the federal framework and the State orders through the period.213 The adult day function: closed by order in Minneapolis from March 17 to July 24, 2020; in New Jersey reopened only under the Department's directives of June 14 and 15, 2021, and thereafter under the conditions they fixed to January 11, 2022.214 The home visit function: performed under screening, source-control and telecommunications rules from March 2020; under a federal occupational standard from June 21, 2021; and under vaccination or testing mandates from July 26, 2021.215 In each case the order that governed the function on the last day of the third quarter of 2021 was an order in force on that day, and the suspension it compelled was present on that day.
The instruments in force later
This analysis names, for each quarter, the instruments in force within it; the quarter map on this page shows each lead instrument against the quarters it spans. The federal testing condition, the federal visitation condition, the reporting and vaccine-offering conditions, the waivers, Appendix K and the OSHA standard were in force on September 30, 2021; the State residential-care orders of Michigan, Louisiana, North Carolina, West Virginia, Kansas, Massachusetts, Idaho, Arkansas, Maryland, New Jersey, Ohio, Washington and Colorado, and Missouri's case-reporting order, were in force on September 30, 2021; and the vaccination and testing mandates of fifteen jurisdictions issued between July 26 and September 28, 2021. Where an order ended inside a quarter, as Pennsylvania's procedure order did on August 23, 2021 and Maryland's Governor's nursing home order did on August 15, 2021, the employer is, in Q&A-22's own words, "an eligible employer for the entire calendar quarter," and the suspension the order compelled continued, because of the order, for the period its dismantling took to reverse.216
The analogy
An employer whose operation was ordered suspended through June 30 was not walking normally on July 1. An employer whose operation was reorganized by an order in March 2020, and whose reorganization an order still compelled in September 2021, is in the position of a patient whose leg was broken in March and who is still in the cast the physician ordered in September: the injury has a date, but the disability is present on every day the cast is on, and it is present because of the order that put it there and keeps it there. The Service's account, under which the suspension ended when the first order was replaced by the second, treats the removal of one cast and the fitting of another as a discharge from care. It is not.
What this analysis does not claim
It does not claim that an order suspended any employer by its own force after the order ended; it does not claim the fourth quarter of 2021 for any employer other than a recovery startup business; and it rests no finding on a generalized pandemic effect. It claims, for each quarter, the orders in force within it and, where an order compelled the dismantling of a function, the period the orders' own phase steps took to restore it, as a suspension caused by the order.217
The four pathways
A quarter therefore qualifies on any of four independent grounds, each present for this industry in each of the six quarters. First, the text: "during the calendar quarter" modifies "suspended," not "orders"; Congress did not write "orders in effect during the quarter," and the suspension an order caused continues because of it through the restoration period, Tri-State defining a suspension to include a "delay" and "due to" as but-for causation, with Q&A-22 and the transition sentence of Q&A-16 as the Service's own recognition of the rule. Second, the orders actually in force in the quarter, which for the third quarter of 2021 are B-1 through B-18, each with its status on the quarter's first and last day. Third, the counterparty orders in force in the quarter, which fixed the employer's referrals, workforce, transportation and revenue. Fourth, the restoration arithmetic from the orders' own phase steps and sunset dates, which the paragraphs under the heading "The arithmetic of the dismantling" supply function by function.218