The Interconnected Economy and the Broken Leg
This industry sells the use and transfer of physical places, and it completes every sale through counterparties an order can close: the recorder, the notary, the appraiser, the lender, the court, the tenant's own business, the buyer's employer and the buyer's children's school. An order on any of those is an order limiting commerce, travel or group meetings, and an operation of this industry delayed, interrupted or terminated because of it is suspended due to it. The orders of 2020 and the first half of 2021 compelled this industry to dismantle its operation; the orders' own reopening steps show that the restoration ran into and through the third quarter of 2021; and the clause's grammar, Tri-State's definition and the Notice's own words make the continuing suspension a suspension "during the calendar quarter."
The mechanisms
Six mechanisms carried orders addressed to others into this industry's operation. Supply chain and borders: the entry proclamations, the land-border notices and the Title 42 order closed the movement of foreign buyers into the gateway and resort markets and of the industry's own cross-border staff, from January 31, 2020 through November 8, 2021.199 Workforce, schools and child care: the school closures of the spring of 2020 and the remote year that followed, the FFCRA leave mandate through December 31, 2020, the emergency-only child-care orders and the isolation and quarantine orders of every health officer removed the industry's staff from its offices, and its customers from the market, by law.200 Travel and gatherings: the interstate quarantines of New York, New Jersey, Connecticut, Hawaii, Massachusetts, Vermont, Maine, Rhode Island, New Mexico, Kentucky, Kansas and Chicago confined the out-of-State buyer and the second-home purchaser, and the gathering limits of every State made the open house unlawful and emptied the convention halls in which the industry meets (listed with this page's meetings).201 Courts and public offices: the orders of the layers section closed or conditioned the recorders' counters at which a deed becomes a conveyance and the courtrooms in which a lease is enforced.202 Transit: the CDC conveyance order, the TSA directives and the transit agencies' rules conditioned every commute from February 1, 2021.203 Health care as counterparty: the health-care-worker vaccination orders of California, New York, Washington, Denver and the territories from July 26, 2021 conditioned the industry's medical office tenants and its own site work in hospitals and clinics.204
Counterparty orders as orders
The statute's object is "commerce, travel, or group meetings," not the employer's premises. The Notice's Q&A-12 applies the clause exactly so, making an employer eligible "because its operations have been suspended due to the governmental order that suspended operations of its supplier," and the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."205 The supplier of a title agency is the recorder and the notary; the supplier of a brokerage is the seller who may admit a stranger to her home and the buyer who may leave his; the supplier of a property manager is the court that issues the warrant of removal; the supplier of a commercial landlord is the restaurant, gym or salon whose rent depends on its own permission to open; the supplier of an appraiser is the borrower's front door. Each was closed or conditioned by order, and the operations that depended on it were suspended in part because of the order in the only sense the statute uses. The eviction orders, moreover, were not third-party orders at all: the CDC addressed "a landlord, owner of a residential property, or other person with a legal right to pursue eviction," and the State moratoria addressed the landlord by name.206
The textual point
The clause reads "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended"; it asks whether the suspension existed at any time in the quarter, not whether an order was issued in or addressed to the quarter. Congress did not write "orders in effect during the calendar quarter."207 Tri-State holds that a suspension includes a "delay" and that causation is but-for.208 The Notice recognizes both propositions: Q&A-22 makes an employer whose suspension ends in the middle of a quarter eligible for the whole quarter, and Q&A-16 treats the time an employer needs to move between modes of operation as part of the suspension where the delay exceeds two weeks, the two-week figure being offered "for example."209 A showing function ordered to zero on March 24, 2020, permitted by appointment with four persons on May 7, permitted an open house only under a gathering cap from June 1, re-capped in November, and released from the last cap only in June 2021 was delayed by those orders on every day between, and the delay did not end on the day the last cap lifted.
The restoration arithmetic for this industry
What the orders compelled this industry to dismantle is recorded in the orders themselves. Showings and open houses: Michigan ordered in-person real estate work to zero from March 24 through May 6, 2020, then to appointment with four persons and no open houses from May 7 through May 31, then to open houses under a ten-person indoor cap from June 1, 2020, then under the MDHHS orders of October 2020 through June 2021; Pennsylvania closed the industry's physical operations from March 19 (enforced from March 23) to May 18, 2020, permitted three persons and no group showings from May 19, released counties between June 5 and July 3, 2020, capped gatherings again from July 16 and November 27, 2020, and released the last limits May 31, 2021; New York prohibited in-person showings from March 22, 2020 until Phase Two (May 29 to June 22, 2020), then confined them under the Real Estate Guidelines' occupancy and face-covering conditions until May 19, 2021; Washington barred open houses from March 25, 2020, permitted two and then five persons by appointment, permitted open houses only in Phase 3, barred them again from November 17, 2020, and released the Real Estate Requirements only on June 30, 2021; California confined showings to vacant units and appointment in its largest counties from March 31, 2020, governed them under the Blueprint from August 31, 2020, closed the Regional Stay at Home regions from December 5, 2020 to January 25, 2021, and released the Blueprint on June 15, 2021.210 A brokerage whose two spring selling seasons ran under those orders had been ordered, for fifteen months, to forgo or confine the showings and open houses from which its listing inventory, buyer pipeline and agent roster are built, and no order permitted it to rebuild them at a pace it controlled. Evictions: the remedy was barred by court stay from March 13 to 27, 2020 in a dozen States, by State order from March 16 to April 23, 2020 in thirty-four States and the District, by CARES Act § 4024 from March 27 to July 24, 2020, by the CDC from September 4, 2020 through July 31, 2021 and again from August 3 to August 26, 2021, by FHA and FHFA through September 30, 2021, and by New York through January 15, 2022, Washington through October 31, 2021, Illinois through October 3, 2021, New Jersey through December 31, 2021, Los Angeles through January 31, 2022, Seattle through January 15, 2022 and Somerville through April 30, 2022; a property manager's arrears docket built over sixteen months could not be cleared in the quarter in which the federal bar ended, and in the jurisdictions named it did not end.211 Closings and appraisals: every closing conducted under an emergency notarial rule from March 19, 2020, every deed recorded through an e-recording queue while the counter was closed, and every appraisal completed exterior-only or desktop from March 23, 2020 through May 31 and June 30, 2021 was a transaction the orders had reshaped; the interior inspections, recorded instruments and title examinations the orders deferred were the work of the quarters that followed.212 Leasing and amenities: the leasing office reopened at twenty-five and fifty percent, the gym and pool under the fitness and pool orders, the clubhouse under the gathering caps, and each re-closed in the winter; the occupancy a property manager could lease, and the amenities for which a tenant would pay, were restored only as the orders' steps allowed.213 An employer whose operation was ordered suspended through June 30 was not walking normally on July 1, and the orders' own step dates fix the arithmetic.
What was still in force when the general restrictions ended
When the last capacity orders lifted between May 19 and July 1, 2021, the following remained in force and are relied on as the orders they are: the CDC eviction order through July 31 and, in the covered counties, August 3 through 26, 2021; the FHA, FHFA, VA and USDA eviction moratoria through September 30, 2021; the CFPB's Regulation X safeguards from August 31, 2021; the eviction statutes, proclamations, procedures and court stays of New York, New Jersey, California, Illinois, Washington, Oregon, Minnesota, New Mexico, Maryland, Hawaii, Vermont, Nevada, Connecticut and the District of Columbia, of Delaware (July 1 through July 12) and Colorado (July 1 through July 8, 2021), and of the Virgin Islands and Guam; the remote-notarization instruments of ten States (Illinois, Massachusetts, North Carolina, Connecticut, Texas, Mississippi and Georgia throughout the quarter, and Maryland to August 15, New Jersey to July 22 and Vermont to July 15, 2021); the local eviction moratoria and court orders of Los Angeles, Seattle, Boston, Somerville, Philadelphia, Pittsburgh, Cook County, Bexar County, Franklin County and Cleveland; the emergency declarations of twenty-five States on September 21, 2021; the State and metro face-covering, vaccination-proof and court orders of July through September 2021, the workplace infection-prevention and exposure-control requirements of the Delta quarter; the school face-covering and quarantine orders of the autumn; the federal conveyance, workplace, contractor, entry and border orders; and the HERO Act plans of New York.214 The third quarter of 2021 above states them with dates. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter.