The interconnected economy and the broken leg
This industry buys its protective equipment in the same market as the human hospitals, examines animals whose owners travel to it from homes the orders confined, boards animals whose owners' travel the orders ended, dispenses under federal registration, employs a workforce whose children the orders sent home, and serves breeders, rescues and farms whose commerce the orders governed. 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 interconnected economy
The mechanisms
Six mechanisms carried orders addressed to others into this industry's operation. Supply chain and borders: the industry's respirators, gloves, gowns, anesthesia machines and ventilators are the human hospital's, and when the President placed them under Defense Production Act allocation, the Secretary of Health and Human Services designated them scarce materials and FEMA forbade their export, the veterinary distributor's shelf emptied; the governors of Colorado, Minnesota, Oregon, Michigan and New Jersey then ordered veterinary facilities to inventory, surrender, minimize or conserve what they had, reciting the human shortage as the reason; and in July 2021 the FDA withdrew the authorizations under which a large share of the respirators in that market had entered it.185 The land-border prohibition barred a Canadian practice owner from commuting to his own clinic; the consular suspensions and entry proclamations kept foreign-trained veterinarians and the H-2A workers of the industry's dairy and livestock customers out of the country.186 Workforce, schools and child care: the school closures of the spring of 2020, the emergency-only child-care orders, the FFCRA leave mandate through December 31, 2020 and the quarantine directives removed the industry's technicians, kennel attendants and receptionists from its premises by law, and the 2021-22 school orders did so again in August and September 2021.187 Travel, tourism and gatherings: the entry proclamations, the traveler quarantines of New York, Hawaii, Alaska, Kansas and their counterparts, the collapse of air travel and the gathering caps of every State ended the boarding customer's trip, the training class and the adoption event.188 Courts and public offices: the court, motor-vehicle and board-office closures suspended the collections, licensing and contracts through which the industry's administration runs; Tennessee suspended the inspections its veterinary licensure requires.189 Transit: the CDC conveyance order and the TSA directives conditioned every commute from February 1, 2021 through the period.190 Health care as counterparty: the human-health orders on hospitals reached the industry as the premise of its own suspensions, as the source of the shortage its supply function bought into, and, from 2021, as the mandates on the household members of its staff.191
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."192 The supplier of a veterinary practice is the distributor whose respirators the federal government allocated; the supplier of a boarding kennel is the airline whose passenger the entry proclamation barred and the office whose worker the telework mandate sent home; the supplier of a rescue is the importer whose dogs the CDC suspended; the supplier of a livestock practice is the plant that Executive Order 13917 and the outbreak closures governed; the supplier of every practice is the school that kept its technician at home. 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 broken leg
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."193 Tri-State holds that a suspension includes a "delay" and that causation is but-for.194 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.195 An operation ordered to postpone every elective procedure in March 2020, permitted to resume under written plans and PPE conditions in May 2020, confined to ten percent in November 2020, and released from condition in April, May or June 2021 was delayed by those orders on every day between, and the delay did not end on the day the last condition lifted. An employer whose operation was ordered suspended through June 30 was not walking normally on July 1.
The restoration arithmetic for this industry
What the orders compelled this industry to dismantle is recorded in the orders themselves and in the industry association's survey of April 2020. Surgical schedules: Colorado, Minnesota, Oregon, Michigan, Indiana and Utah ordered every elective and non-essential procedure postponed between March 23 and April 2, 2020; the postponements ran to April 26, May 1, May 10 and May 28, 2020; the recommencement orders then conditioned every procedure on a written plan, PPE adequacy, screening and consent to April 16, 2021 in Colorado (389 days from the first order), May 27, 2021 in Minnesota (430 days) and 12:01 a.m. June 30, 2021 in Oregon (464 days); Michigan's workplace and waiting-room rules for veterinary clinics ran to June 22, 2021 (446 days).196 Waiting rooms and front desks: closed to every customer under the stay-at-home orders of March and April 2020, held closed by the face-covering, distancing and waiting-room orders of every State through the spring of 2021, and masked again by the Delta-wave exposure-control orders from July 17, 2021.197 Grooming and training: closed between March 18 and April 3, 2020 in at least fourteen States, reopened by appointment, curbside or half capacity between April 24 and June 22, 2020, closed again in New Mexico from November 19 to December 2, 2020, cut to a quarter in Colorado's Red and Orange counties from November 20, 2020, and conditioned in Kentucky by the crate-and-curbside rule to June 11, 2021 (450 days).198 Protective equipment: inventoried, surrendered, minimized and conserved by State order from March 23, 2020, bought under federal allocation and export detention to June 30, 2021, under the scarce-materials designation to November 15, 2021, and under the FDA's revocations from June 30 and July 6, 2021.199 Prescribing and examination: conducted under emergency federal and State rules from March 16, 2020 (DEA), March 18 (Pennsylvania), March 27 (Florida), April 1 (Colorado), April 6 (Maine), April 25 (Hawaii) and June 4 (California), under the FDA's enforcement policy of March 24, 2020, guidance by its own legend, and under Kentucky's Board of Veterinary Examiners Order of April 16, 2020 (Ex. KY-046; Ex. KY-056), rules that ran to August 6, 2021 (Hawaii, 468 days), August 30, 2021 (Maine, 511 days), October 31, 2021 (California), January 15, 2022 (Kentucky), March 31, 2022 (Pennsylvania) and, for the FDA policy, February 21, 2023.200 Boarding: the boarding season of 2020 removed by the travel orders, and the travel orders in force on every day of the third quarter of 2021.201 Staff: the AVMA's April 2020 survey found nearly every practice reporting a decline in revenue, close to a fifth seeing only emergency cases and about five percent seeing no customers at all; pet-care employment fell 10.4 percent in 2020; the technicians, kennel attendants, groomers and receptionists whose functions the orders closed were laid off or furloughed under orders that changed on days' notice, and their replacement ran on the calendar of a labor market the Bureau of Labor Statistics recorded as 5.2 million persons "unable to work because their employer closed or lost business due to the pandemic" in July 2021 and 5.0 million in September 2021.202 The orders' own end dates show that the restoration had not been completed when the third quarter of 2021 began: Michigan released its veterinary clinics nine days before it, Pennsylvania released its veterinary-clinic face-covering order three days before it, Oregon released Executive Order 20-22 the day before it, Delaware released its veterinary-facility face-covering and exclusion requirements twelve days into it, Hawaii and Maine released their licensing suspensions on August 6 and 30, and California, Pennsylvania, Kentucky, Virginia and the federal government released nothing before September 30, 2021.
What was still in force when the general restrictions ended
When the last State general regimes lifted between March 10 and July 1, 2021, the following remained in force and are cited as the orders they are: the DEA exceptions, the PREP Act designation and the federal allocation and scarce-materials orders; the CDC conveyance order and TSA directives; the entry proclamations, land-border notices, Title 42 order and inbound-testing order; the federal workplace and eviction orders; Cal/OSHA's section 3205, Oregon OSHA's OAR 437-001-0744 and Virginia's 16VAC25-220, each binding every veterinary employer in its State; the telemedicine and licensing regimes of California, Pennsylvania, Maine, Kentucky and Hawaii; Delaware's veterinary-facility face-covering and exclusion requirements to July 12; the emergency declarations of thirty-five jurisdictions on July 2 and twenty-five on September 21, 2021; the Delta-wave face-covering, gathering and proof-of-vaccination orders of seven States, the District and the largest cities from July 17 onward; the dog-importation suspension from July 14; the school, child-care and quarantine orders of the autumn; and the continuing and preemptive orders of the remaining States.203 The third-quarter section 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.