Full Opinion

In the United States Court of Federal Claims FOR PUBLICATION No. 24-2096T (Filed: May 28, 2026) ) NORTHEAST HEALTH SERVICES, LLC, ) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ) Christopher N. Moran (argued), Venable LLP, Baltimore, MD, for plaintiff. Theresa Clardy LaFazia, Venable LLP, Los Angeles, CA, Of Counsel. Anthony M. Cognasi (argued), Trial Attorney, Tax Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, for defendant. With him on the briefs were Brett A. Shumate, Assistant Attorney General; Joshua Wu, Deputy Assistant Attorney General; and Jason E. Bergmann, Assistant Director, and Eric J. Smith, Trial Attorney, Tax Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC. OPINION AND ORDER BONILLA, Judge. This COVID-19–related tax refund claim presents issues of first impression in this Circuit. Plaintiff Northeast Health Services, LLC (NEHS) claims a nearly $5 million tax refund for the first three quarters of 2021, attributed to the Employee Retention Credit (ERC) under section 2301 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, 134 Stat. 281, 347–51 (2020) (codified as amended at 26 U.S.C. § 3134). Pending before the Court are the parties’ cross-motions for summary judgment under Rule 56(a) of the Rules of the United States Court of Federal Claims (RCFC). Specifically, the parties seek to resolve the issue of liability, with NEHS asserting eligible employer status and, conversely, the government arguing that NEHS was exempted from the cited COVID-19–related orders and directives or, alternatively, that the healthcare provider’s operations were not fully or partially suspended “due to” a qualifying governmental order. For the reasons discussed below, NEHS’s motion is denied, and the government’s dispositive cross-motion is granted. BACKGROUND NEHS is a healthcare provider that offers mental health care services— including counseling, psychotherapy, psychiatric medication management, and interventional psychiatry—through outpatient mental health clinics located throughout the Commonwealth of Massachusetts.1 Its clinics are licensed and regulated as healthcare facilities by the Massachusetts Department of Public Health (DPH),2 which is one of eleven state governmental agencies that comprise the Massachusetts Executive Office of Health and Human Services (EOHHS).3 Prior to March 2020, NEHS provided its services exclusively in person at nine clinics located throughout Massachusetts.4 On March 10, 2020, then–Governor of Massachusetts Charles D. Baker Jr. declared a state of emergency in response to the COVID-19 pandemic, explaining that he would “from time to time issue recommendations, directives, and orders as circumstances may require.” ECF 21-1 at 17. Pursuant to that declaration, the governor issued COVID-19 Order No. 13 on March 23, 2020, titled “Order Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More Than 10 People.” Id. at 19–23. The order designated certain workforces and businesses—including “physicians, . . . psychologists, . . . nurses and assistants, . . . [and] . . . other providers of mental and behavioral health care,” id. at 25 (Exhibit A)—as “COVID-19 Essential Services.” Id. at 20. Order No. 13 “urged [COVID-19 Essential Services] to continue operations during the state of emergency, but to do so with allowance for social distancing protocols consistent with guidance provided by [DPH].” Id. Businesses “that d[id] not provide COVID-19 Essential Services” were told that they “shall close their 1 See About Us, NE. HEALTH SERVS., available at https://perma.cc/3YP3-N58S. 2 The Code of Massachusetts Regulations sets forth standards for the maintenance and operation of clinics and defines a clinic, in relevant part, as “[a]ny entity, however organized, whether conducted for profit or not for profit, [that] is advertised, announced, established, or maintained for the purpose of providing[, among other things,] mental health services.” 105 MASS. CODE REGS. 140.020 (2025). 3 See generally Executive Office of Health and Human Services, MASS.GOV, available at https://perma.cc/5JUM-SM6X. 4 In its motion for partial summary judgment, NEHS asserts that, “[p]rior to the onset of the COVID-19 pandemic in March 2020, [it] had ten clinic locations in Massachusetts.” ECF 21 at 7 (emphasis added). One of the clinics, however, never commenced operations. See ECF 23-2 at 32–33 (“[A]t the time of my coming to the company, there were ten physical locations, one of which was new and to open. That site never opened for a variety of reasons. It was going to be doing a little bit more of an addiction-focused service. That was a particularly in-person service. We just never launched that line, and so that site— we let the lease go.”); ECF 28 at 7–8. 2 physical workplaces and facilities . . .” and were “encouraged to continue operations where they [we]re able to operate through remote means . . . .” Id. at 20–21. NEHS submits that it interpreted “mental and behavioral health care” within the meaning of Order No. 13’s carveout for “COVID-19 Essential Services,” id. at 25, as referring only to “hospital and inpatient services, not outpatient mental health clinics such as NEHS’s clinics.” ECF 21 at 8 (citing ECF 21-1 at 6 ¶ 9). NEHS therefore “closed its outpatient clinics and ceased operations for approximately three weeks.” Id. (citing ECF 21-1 at 6 ¶ 10). NEHS maintains that, although it was able to implement telehealth capabilities in late April 2020, those early-pandemic sessions were limited and often consisted of brief telephonic or virtual patient check-ins, rather than full-length therapy sessions. The restrictions imposed by Order No. 13 were extended three times on March 31, 2020 (COVID-19 Order No. 21), April 28, 2020 (COVID-19 Order No. 30), and May 15, 2020 (COVID-19 Order No. 32). Then, on May 18, 2020, then-Governor Baker issued COVID-19 Order No. 33, which instituted a four-phase business reopening plan and delegated “specific authority to [DPH to] promulgate directives, regulations, and guidance to implement and enforce the terms of th[e] Order . . . .”5 ECF 21-1 at 35–43. Violations of Order No. 33—or any directives, regulations, or guidance issued pursuant thereto—were punishable by civil fines of up to $300 per violation and enforceable via injunctive relief. Of note, the governor’s directive exempted “[a]ny health care facility or provider licensed by [DPH].” Id. at 41. The same day, DPH issued its own guidance, outlining instances in which health care providers could begin implementing “urgent elective invasive procedures.”6 Id. at 45. Consistent with Order No. 33, DPH and EOHHS proceeded to issue different stages of reopening guidance between May 2020 and March 2021. The guidance applied to healthcare providers that offered services for non-emergency procedures prior to the COVID-19 pandemic but were unable to perform those procedures during the early days of the pandemic due to restrictions on in-person care. The DPH and EOHHS guidance placed numerous restrictions on the healthcare providers required to follow it. For example, DPH required providers to prioritize telehealth where appropriate. See id. at 78 (explaining, for phase one, that “[h]ealth care providers should . . . continue to provide services via telehealth to the greatest extent possible when clinically appropriate, while also recognizing that telehealth may not be feasible or clinically appropriate for all patients”), 92 (similar 5 Order No. 33 limited the rulemaking authority delegated to DPH to “businesses, organizations, and workplaces subject to the sanitary code established pursuant to section 127A of chapter 111 of the General Laws and where DPH otherwise has existing regulatory authority.” ECF 21-1 at 40. 6 The May 18, 2020 DPH order authorized health care providers to “implement procedures published by [DPH] regarding the scheduling and performance of . . . urgent elective invasive procedures,” provided the health care providers “submit[] an attestation to the state certifying that they meet [applicable] clinical, capacity, safety standards, and governance requirements . . . .” ECF 21-1 at 45. 3 for phase two), 103 (similar for phase three), 113 (similar for phase four). Each phase of DPH’s four-phase plan also required providers to implement procedures designed to reduce the spread of disease where possible, including, but not limited to: providing personal protective equipment and other essential supplies, see, e.g., id. at 78 (phase one), 94 (phase two), 107 (phase three), 111 (phase four); limiting employees to those “necessary to complete the service or procedure for the patient,” id. at 79 (phase one), 94 (phase two), 107 (phase three), 111 (phase four); promoting social distancing, id. at 80 (phase one), 94 (phase two), 107 (phase three), 110 (phase four); and establishing plans to clean and disinfect common and procedural areas, id. at 80 (phase one), 94–95 (phase two), 107 (phase three), 112 (phase four). On May 28, 2021, then-Governor Baker—citing “sustained improvements in the public health data” and “the development and effective distribution to the public of safe, highly effective, and free COVID-19 vaccines”—rescinded the four-phase business reopening plan, effective May 29, 2021. See id. at 115–17. Health care providers, however, continued to be subject to DPH guidance on limiting the spread of COVID-19. See, e.g., id. at 123–26 (“COVID-19 Guidance for Health Care Providers, effective June 14, 2021”); id. at 128–31 (update to “COVID-19 Guidance for Health Care Providers,” effective “July 2, 2021”). NEHS asserts that “the executive orders, DPH reopening orders, DPH phased guidance, inspection suspensions, and enforcement mechanisms significantly disrupted NEHS’s operations and limited its ability to provide in-person outpatient mental health services throughout 2020 and 2021.” ECF 21 at 13. In support, NEHS provides a list of financial and logistical challenges it experienced while responding to the COVID-19 pandemic and attempting to comply with state directives and guidance. First, NEHS details the difficulties experienced in providing consistent and reliable services throughout the COVID-19 pandemic. The healthcare provider reports that its clinics were subject to capacity limits and periodic closures during 2020 and 2021 due to COVID-19 exposures. NEHS also notes that it struggled to treat certain patient populations, including children, while implementing newly required telehealth treatment methods. Second, NEHS outlines its inability to implement specialized treatment modalities during the later stages of the pandemic. In May 2021, NEHS acquired a West Virginia–based provider of Transcranial Magnetic Stimulation (TMS) and Spravato (esketamine),7 both of which require in-person administration and post- administration observation and, therefore, cannot be administered via telehealth. Although NEHS intended to introduce these treatments at its clinics, it was unable 7 TMS is a non-invasive antidepressant procedure, and Spravato is a nasal spray. See Transcranial Magnetic Stimulation, MAYO CLINIC (Apr. 7, 2023), available at https://perma.cc/MJ4T-QKN5; What is Spravato® (esketamine) CIII Nasal Spray?, SPRAVATO (ESKETAMINE) (Dec. 2025), available at https://perma.cc/Y76Z-5B9D. 4 to do so in 2020 and 2021 due to the clinic opening delays and limitations on in-person treatment.8 Third, NEHS describes disruptions to its ability to maintain and supervise a consistent and qualified workforce. For certain services, NEHS previously relied on employees who could not lawfully practice (or bill) without in-person supervision by licensed clinicians, including physician assistants and certified nurse practitioners.9 Restrictions and safety constraints designed to combat the spread of COVID-19, however, complicated or otherwise prevented NEHS from properly supervising and, consequently, utilizing non-licensed practitioners. Additionally, NEHS experienced delays in licensing, onboarding, and credentialing clinicians due to “COVID-related disruptions affecting licensing boards, insurers, and administrative processing.” ECF 21-1 at 140–41. NEHS also maintains that school closures and the unavailability of childcare services caused some of its employees to stay home from work, preventing them from scheduling patient visits at pre-pandemic rates.10 Fourth, NEHS recounts the operational impact it suffered on account of its unexpected transition to telehealth. Prior to February 2021, NEHS did not have a universal telehealth platform, and its telehealth capability varied by clinic and provider. The transition reportedly caused NEHS to “incur[] additional expenses to implement and maintain telehealth, including per-clinician telehealth licenses and staff training.” Id. at 141. NEHS also points to increased complexities and 8 NEHS does not explain how it would have introduced the treatments in 2020, before it acquired the West Virginia–based provider. See ECF 23 at 9 (“[I]n May 2021, NEHS acquired a West Virginia– based company to help implement two higher-acuity interventional psychiatric services in its Massachusetts clinics, [TMS] and Spravato® . . . . However, NEHS did not begin offering these services in a meaningful way until 2022.”). An NEHS employee represented that “[i]n 2020 . . . there was no TMS at NEHS. We introduced it in 2021.” ECF 23-2 at 22. But see id. (“You should think of TMS as something that was delayed and affected because it was—it was just not the right time to roll it out.”). 9 See, e.g., 267 MASS. CODE REGS. § 3.02(2)(b)(4) (2020) (“An unlicensed individual may perform any of the functions or services specified in [267 MASS. CODE REGS. § 3.02(2)(a)] pursuant to a delegation of medical services by a duly licensed physician only if: . . . [t]he unlicensed individual performs the function or service in question in accordance with accepted standards of medical practice and under the direct, personal, on-site supervision of the licensed physician making that delegation of medical services . . . .”). NEHS also notes that “[t]he various boards within . . . DPH’s Bureau of Health Professions Licensure” and “[i]nsurance payers, including Medicare, Medicaid, and commercial payers, also require that clinicians who are not independently licensed be supervised by a licensed clinician . . . .” ECF 21-1 at 11–12. 10 See ECF 21-1 at 132–34 (March 15, 2020 “Order Temporarily Closing All Public and Private Elementary and Secondary Schools”); id. at 135–38 (March 18, 2020 “Order Temporarily Closing All Child Care Programs and Authorizing the Temporary Creation and Operation of Emergency Child Care Programs”). During 2020 and 2021, NEHS employed approximately 200 to 250 psychiatric and therapy professionals, including psychiatrists, nurse practitioners, physician assistants, and social workers. NEHS explains that “many [of its clinicians and therapists] have child and family obligations” and were affected by the school closures. Id. at 12. 5 administrative burdens associated with telehealth billing, which delayed revenue collection and increased claim denials. Explaining the financial impact of the implementation and utilization of telehealth services, NEHS also points to aberrations in its employees’ usage of billing codes that corresponded with a decrease in its expected reimbursement amount per visit: prior to March 2020, only approximately two percent of patient visits used the billing code for a 30-minute appointment, but between January 2021 and September 2021, that rate jumped to approximately eight to ten percent.11 Finally, NEHS reports that it missed revenue opportunities attributable to delayed clinic openings. Massachusetts regulations require clinics to receive approval of construction plans and pass an in-person DPH inspection before constructing and opening new clinics. See 105 MASS. CODE REGS. § 140.103(C), (E) (detailing “prior approvals” and other steps to follow “[i]n the case of new construction of a clinic . . . .”). DPH reportedly suspended in-person inspections for new clinic licensures at the start of the COVID-19 pandemic and only resumed in-person inspections during late 2020 and 2021 at a limited capacity. As a result, notwithstanding NEHS’s plans to open seven new clinics and reopen another, the healthcare provider only opened one new clinic in 2021.12 The government counters that NEHS is not entitled to the ERC because, as a COVID-19 Essential Service, the healthcare provider was exempted from the state- imposed restrictions. The government further avers that NEHS’s operations were not “fully or partially suspended” as that term is defined under the relevant portion of the CARES Act and, in any case, that any claimed business interruptions were not “due to” a qualifying government order. Regarding NEHS’s conversion to telehealth, the government notes that, when NEHS first contracted with a telehealth implementation service in October 2020,13 the corresponding rollout was “straightforward” because many of its clinicians had been independently using the same telehealth service since May 2020. ECF 23 at 12; accord ECF 23-2 at 14–15; ECF 23-3 at 11. The government also points to deposition testimony indicating that the administrative burden associated with NEHS’s transition to telehealth was, at most, minimal. ECF 23 at 13; see ECF 23-2 at 21 (noting that the COVID-19 emergency order “suspended the in-person requirement for initiation of psychotropic 11 The 30-minute billing code reimburses clinics at a materially lower rate than the 45-minute or 60-minute billing codes. 12 By comparison, NEHS opened six new clinics in 2022, thirteen new clinics in 2023, and “approximately” twelve new clinics in 2024. ECF 21-1 at 143 ¶ 23. 13 As discussed above, NEHS asserts that it “entered into an enterprise-wide telehealth agreement in February 2021.” ECF 21-1 at 141 ¶ 13. The different dates—October 2020 versus February 2021— are not inconsistent. The parties appear to have chosen them based on the scope of NEHS’s agreement with the telehealth service. In October 2020, the agreement was “for a per clinician, per month fee to make it available and have them enrolled,” ECF 23-2 at 15, while in February 2021, the agreement was “enterprise-wide,” ECF 21-1 at 141. 6 medications,” making it possible for NEHS to initiate psychotropic medications via telehealth); ECF 23-3 at 9 (explaining NEHS did not have the administrative burden of collecting co-pays for a period of time extending “several months into Covid”). Finally, the government interprets the increased percentage of appointments that utilized the 30-minute billing code differently than NEHS does, noting that, while NEHS did see an increase in 30-minute appointments, NEHS maintained roughly the same amount of 45-minute and 60-minute appointments. Notwithstanding NEHS’s claimed operational challenges, the government points to certain metrics indicating that the healthcare provider’s business grew or otherwise remained relatively consistent throughout the pandemic. In the first three quarters of 2021, NEHS gained a net of seventy-four employees, compare ECF 23-6 at 2 (315 compensated employees in Q1), with id. at 10 (389 compensated employees in Q3), and increased its gross profit per quarter from slightly under $5 million in Q1 to just over $5 million in Q3. Additionally, while it lost about ten percent of its patients to school closures,14 NEHS did not otherwise suspend or cancel any contracts during the pandemic. Against this backdrop, NEHS filed three Forms 941-X (Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund) on or about January 19, 2024, for the employment tax quarters ending March 31, 2021 (Q1), June 30, 2021 (Q2), and September 30, 2021 (Q3). In each amended return, NEHS explained it was seeking “[t]o retroactively claim the [ERC]” under Section 2301 of the CARES Act.15 ECF 1-2 at 6, 11, 16; accord ECF 1 at 1. As recently explained by this Court: The CARES Act was one of several laws that Congress passed in the spring of 2020 to address the economic impacts of COVID-19. The CARES Act included the [ERC], a refundable tax credit that subsidized employers who were forced to close or suspend operations due to COVID-19–related public health orders. Using the ERC, eligible employers can reduce the amount paid in employment taxes by 70% of the amount paid to employees during the pandemic-related shutdowns. 14 NEHS “had contracts with some schools, and those services stopped . . . . [C]linicians would go on-site, and . . . services were scheduled during the school day. That ended . . . .” ECF 23-2 at 27. 15 Originally, the ERC applied exclusively to tax year 2020. See § 2301(m), 134 Stat. at 351 (“This section shall only apply to wages paid after March 12, 2020, and before January 1, 2021.”). Congress extended it twice: first, through the Taxpayer Certainty and Disaster Tax Relief Act of 2020, Pub. L. No. 116-260, 134 Stat. 1182, 3062 (amending Section 2301(m) of the CARES Act to extend the ERC to wages paid until July 1, 2021); and second, through the American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4, 182 (amending the CARES Act to extend the ERC to wages paid until January 1, 2022). Congress later amended the CARES Act to eliminate the availability of the ERC after the third quarter of 2021 for most businesses (including NEHS). See Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429, 1341 (2021) (amending the CARES Act to terminate the ERC on October 1, 2021 for eligible employers that do not qualify as recovery startup businesses). 7 If the credit exceeds the amount of employment taxes paid, employers can claim the difference as a cash refund . . . . Gravenstein 116, LLC v. United States, 180 Fed. Cl. 292, 294 (2026) (footnote and additional internal citations omitted) (citing I.R.C. § 3134). NEHS filed this action after the Internal Revenue Service (IRS) failed to process the requested refunds within six months.16 DISCUSSION I. Standard of Review Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a). A “genuine” dispute exists where a reasonable factfinder “could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material” facts, in turn, are those “that might affect the outcome of the suit.” Id. In deciding motions for summary judgment, the Court must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). The moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). That burden can be met by showing “there is an absence of evidence to support the nonmoving party’s case.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex, 477 U.S. at 325). “Once the moving party has satisfied its initial burden, the opposing party must establish a genuine issue of material fact and cannot rest on mere allegations, but must present actual evidence.” Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir. 2007) (citing Anderson, 477 U.S. at 248). Summary judgment is warranted when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party . . . .” Matsushita, 475 U.S. at 587. II. Eligible Employer The parties’ principal disagreement is whether NEHS qualifies as an “eligible employer” under the ERC. The CARES Act defines “eligible employer,” in part, as “any employer”: 16 Under 26 U.S.C. § 6532(a)(1), “[n]o suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time . . . .” 8 (i) which was carrying on a trade or business during the calendar quarter for which the credit is determined . . . , and (ii) with respect to any calendar quarter, for which— (I) the operation of the trade or business described in clause (i) 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 [COVID-19], [or] (II) the gross receipts . . . of such employer for such calendar quarter are less than 80 percent of the gross receipts of such employer for the same calendar quarter in calendar year 2019 . . . . 26 U.S.C. § 3134(c)(2)(A). NEHS was undisputedly “carrying on a trade or business during” the quarters in question. The parties, however, dispute whether NEHS satisfies clause (ii)(I) of the definition—hereinafter, the “suspension-of-business prong”—which itself contains three discrete statutory requirements: that the business was “fully or partially suspended during the calendar quarter”; that there existed “orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to [COVID-19]”; and that the suspension of business was caused by (i.e., “due to”) a qualifying order. 26 U.S.C. § 3134(c)(2)(A)(ii)(I). To prevail on summary judgment, the government need only demonstrate that there is no genuine dispute that NEHS fails to meet at least one of the three requirements of the suspension-of-business prong. See, e.g., In re JSmith Civ., LLC, 674 B.R. 207, 218 (Bankr. E.D.N.C. 2025) (granting summary judgment to government where there was no genuine issue as to whether plaintiff was exempted from the government orders in question), appeal docketed, No. 25-513 (E.D.N.C. Aug. 22, 2025). Because the CARES Act does not define the relevant terms or elaborate on the scope of the requisite causal relationship, the Court must determine the meaning of those requirements.17 See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 17 The Court is aware of two cases aside from this one where federal courts have interpreted the meaning of “eligible employer” under § 2301 of the CARES Act: In re JSmith, 674 B.R. 207, and JPM Rest., LLC v. United States, No. 24-357, 2026 WL 561147 (E.D. Tenn. Feb. 27, 2026), notice of appeal filed, No. 24-357 (E.D. Tenn. Apr. 1, 2026), Dkt. No. 88. In a third case, the United States District Court for the District of Arizona considered whether Internal Revenue Bulletin 2021-11—published by the Internal Revenue Service (IRS) to provide guidance on its interpretation of the ERC’s eligibility requirements, see infra note 20—“was a mere interpretive document . . . or improper legislative rulemaking that should have been subject to the [Administrative Procedure Act (APA)]’s notice-and- comment procedures.” Stenson Tamaddon LLC v. IRS, No. 24-1123, 2025 WL 1725942, at *2 (D. Ariz. June 20, 2025), appeal docketed, No. 25-4217 (9th Cir. July 9, 2025). 9 (2024). In so doing, the Court may look to “the judgment of the Executive Branch” to “inform [its] inquiry,” but it may not delegate the task of statutory interpretation or otherwise defer to the relevant agency’s independent analysis. Id. at 388, 412–13 (explaining that the weight of an agency’s “‘interpretations and opinions’ . . . would ‘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.’” (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944))). A. Qualifying Government Orders Although the government concedes that the “COVID-19 Orders issued by the Governor of the Commonwealth of Massachusetts are governmental orders,”18 ECF 23 at 15–16, it argues the follow-on DPH guidance is not an “order” within the meaning of the CARES Act. To resolve this issue, the Court must first determine what “order” means in this context. Because the CARES Act does not define “order,” see 26 U.S.C. § 3134(c)(2)(A), the Court presumes Congress intended to give that word its plain and ordinary meaning. Gumpenberger v. Wilkie, 973 F.3d 1379, 1382 (Fed. Cir. 2020) (quoting Gazelle v. Shulkin, 868 F.3d 1006, 1010–11 (Fed. Cir. 2017)). An “order” is generally considered a “command, direction, or instruction” or a “written direction or command delivered by a government official . . . .” Order, BLACK’S LAW DICTIONARY (12th ed. 2024); accord Order, MERRIAM-WEBSTER, available at https://perma.cc/CNK3-ZMW4 (“specific rule, regulation, or authoritative direction: command”). “An ‘order’ should be understood in contrast to a ‘recommendation,’ which Black’s Law Dictionary defines as 1. ‘A specific piece of advice about what to do, esp. when given officially’ and 2. ‘A suggestion that someone should choose a particular thing or person that one thinks particularly good or meritorious.’” In re JSmith, 674 B.R. at 214–15 (quoting Recommendation, BLACK’S LAW DICTIONARY (12th ed. 2024)). Both an “order” and a “recommendation” endorse a specific course of conduct; the difference lies in whether the endorsement is enforceable. See id. at 215 (“The key distinction is that ‘an “order” must be compulsory.’” (citing Lawrence Gen. Hosp. v. Cont’l Cas. Co., 90 F.4th 593, 604 (1st Cir. 2024))).19 Thus, to qualify as an “order” under the suspension-of-business 18 As discussed infra, the fact that a directive qualifies as an “order” under the suspension-of-business prong does not necessarily require the Court to interpret every provision in the directive to be mandatory, particularly where the directive qualifies some provisions with permissive language (e.g., “urge” or “should”) and other provisions with mandatory language (e.g., “shall” or “must”). 19 The parties do not dispute whether an order must be compulsory. Compare ECF 21 at 17 (NEHS: “[‘]An “order” must be compulsory.’ . . . [T]he focus is on whether the government has the power to enforce the order.” (citations omitted)), with ECF 23 at 18 (Government: “The directive must be compulsory.” (citations omitted)); but see ECF 24 at 16 (NEHS: noting that, in defining “order,” “what matters is whether ‘compliance . . . was not optional under any practical understanding of that term,’” in contrast to “[d]efendant’s narrower standard, which requires a directive to be ‘compulsory,’ meaning ‘mandatory’ or ‘enforced’ . . . .” (citing Lawrence Gen. Hosp., 90 F.4th at 605)). 10 prong, a government directive must, as a whole, carry enforcement authority or otherwise have the ability to compel a certain course of conduct through the imposition of “binding requirements or repercussions for noncompliance.”20 Id. (quoting Baxter Senior Living, LLC v. Zurich Am. Ins., No. 22-44, 2025 WL 1207151, at *6 (D. Alaska Apr. 25, 2025)); cf. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000) (“If an agency acts as if a document issued at headquarters is controlling in the field, if it treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or State permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document, then the agency’s document is for all practical purposes ‘binding.’” (citation omitted)); cf., e.g., Lawrence Gen. Hosp., 90 F.4th at 605 (holding—in the insurance context—that DPH guidance issued during the COVID-19 pandemic and applicable to inpatient hospitals were orders because the hospital’s “‘choice’ to comply with the stated conditions or forgo the ability to treat ‘the vast majority of its patients’ for an indefinite period is no choice at all”). 20 In guidance published on March 15, 2021, the IRS explained its understanding of the phrase “orders from an appropriate governmental authority” as follows: Orders, proclamations, or decrees from the Federal government or any State or local government may be taken into account by an employer as “orders from an appropriate governmental authority” only if they limit “commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to [COVID-19]” and relate to the suspension of an employer’s operation of its trade or business. . . . Whether orders, proclamations or decrees are governmental orders is determined without regard to the level of enforcement of the governmental order. . . . [T]he declaration of a state of emergency . . . that limits commerce, travel, or group meetings, but does so in a manner that does not relate to the suspension of an employer’s operation of its trade or business does not rise to the level of a governmental order for purposes of the employer’s determination of its eligibility for the employee retention credit. Internal Revenue Bulletin: 2021-11, IRS (Mar. 15, 2021), available at https://perma.cc/4R4K-G2HU (emphasis added). The Court declines to follow the IRS’s construction—that, to qualify as an “order,” a government directive must “relate to the suspension of an employer’s operation of its trade or business”—for three reasons. First, those words are not present in the statute. Cf. Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004) (rejecting construction that “would have [the Court] read an absent word into the statute” because it would “result ‘not [in] a construction of [the] statute, but, in effect, an enlargement of it by the court, so that what was omitted . . . may be included within its scope.’” (alterations in original) (quoting Iselin v. United States, 270 U.S. 245, 251 (1926))). Second, the IRS’s construction appears intended to limit the extent to which businesses can qualify for the ERC by reading a causal relationship between the “order” and the qualifying suspension into the phrase “orders from an appropriate governmental authority.” On this point, a causation requirement is much more readily read into the words, “due to,” than the words, “orders from an appropriate governmental authority.” Third, the government conceded at oral argument that the IRS’s understanding of a qualifying order “does go a little bit farther than Congress intended.” ECF 28 at 44. 11 The DPH guidance promulgated pursuant to Order Nos. 13 and 33 qualifies as an “order” under the suspension-of-business prong.21 Order Nos. 13 and 33 authorized DPH to issue compulsory guidance: they directed DPH to “issue guidance . . . to implement the[ir] terms” and explained that “[v]iolation of . . . the DPH Guidance may result in a criminal penalty . . . or a civil fine . . . .” ECF 21-1 at 21–22 (Order No. 13); see id. at 40–41 (Order No. 33). In other words, if businesses failed to comply with mandatory directives in DPH guidance issued in accordance with the governor’s directives, they risked enforcement action. For the same reason, the DPH guidance promulgated pursuant to the May 28, 2021 modified declaration of public health emergency likely qualifies as an “order” under the suspension-of-business prong as well.22 The May 28, 2021 declaration contained language suggesting that DPH could, if necessary, issue compulsory orders, see id. at 121 (“[DPH] . . . may rely on this declaration . . . to mandate special measures to protect higher risk populations or to effectuate continued surveillance of COVID-19 in the Commonwealth . . . .” (emphasis added)). To the extent businesses failed to comply with mandatory directives contained in that guidance, they similarly risked civil penalties, criminal penalties, and loss of their clinic licenses.23 B. Causation Having established that at least some directives cited by NEHS qualify as “orders” under the suspension-of-business prong, the Court turns to whether NEHS suffered a full or partial suspension “due to” the qualifying orders. NEHS asserts 21 For clarity, this includes the DPH order “regarding the scheduling and performance of urgent and elective invasive procedures,” ECF 21-1 at 44–45, the EOHHS “reopening approach” guidance, id. at 46–69, the May 18, 2020 EOHHS memorandum regarding elective procedures, id. at 70–73, and the DPH phase-in implementation guidance, id. at 74–113. 22 For clarity, this includes the June 14, 2021 DPH guidance, ECF 21-1 at 122–26, and the July 2, 2021 DPH guidance, id. at 127–131. 23 As discussed infra, for the purposes of considering whether an employer qualified for the ERC, an analysis of the extent to which each of the individual directives in the DPH guidance were mandatory is better addressed when determining whether those individual directives caused NEHS’s allegedly qualifying suspensions (i.e., whether the allegedly qualifying suspensions were “due to” the qualifying orders). Under the suspension-of-business prong, a business can satisfy the “orders from an appropriate governmental authority” requirement by pointing to a directive that contained compulsory instructions or otherwise had the authority to issue compulsory instructions. Whether those directives exercised that authority and actually did issue compulsory instructions meant to require (i.e., factually and proximately cause) a business to suspend its operations is better addressed under the separate “due to” requirement. If the Court addressed whether the individual directives contained in the DPH guidance were mandatory under the “order” requirement, then it would risk conflating the “order” requirement with the separate “due to” requirement. Cf. JPM Rest., 2026 WL 561147, at *4–5 (discussing “order” and “due to” as separate requirements)