JSmith Civil, LLC v. United States of America on behalf of the Internal

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION
No. 5:25-CV-513
JSMITH CIVIL, LLC, 	)
)
Appellant, 	)
)
v. 	) 	ORDER
)
UNITED STATES OF AMERICA, 	)
)
Appellee. 	)
On August 22, 2025, JSmith Civil LLC ("JSmith" or "appellant") filed a notice of appeal
from the United States Bankruptcy Court for the Eastern District of North Carolina (''the
bankruptcy court") [D.E. 1] . 	JSmith appeals the bankruptcy court's order granting the United
States' ("appellee" or ''United States") motion for summary judgment. 	See id.; see also In re
JSmith Civ.• LLC, 674 B.R. 207 (Banlcr. E.D.N.C. 2025). The dispute concerns over $1,000,000
in refundable credits under a COVID-19 relief program known as the Employee Retention Credit,
which Congress enacted as part of the CARES Act. As explained below, the court affirms in part
and vacates and remands for further proceedings.
I.
JSmith is a chapter 11 debtor in the United States Bankruptcy Court for the Eastern District
of North Carolina. See In re JSmith Civ.• LLC, 674 B.R. at 210. 	JSmith alleges that the United
States owes JSmith refundable credits under the Employee Retention Credit ("ERC''), a COVID-
19 relief program. See id. Specifically, JSmith alleges that the United States owes it $350,478.53
for Q2 2020 (April to June 2020) and $745,394.93 for Q2 2021 (April to June 2021). 	See id. at
211.
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In 2020, Congress passed the CARES Act (''the Act") to help individuals and businesses
affected by the COVID-19 pandemic. See CARES Act, Pub. L. No. 116-136, 134 Stat. 281 (2020).
The Act created several forms of assistance including the ERC. See id. § 2301. The ERC provided
"eligible employer[s]" with a tax credit against applicable employment taxes if the employer paid
qualified wages to its employees during the calendar quarters in 2020 and 2021. Id. To qualify as
an "eligible employer," an employer must have:
(i) 	carr[ied] on a trade or business during calendar year 2020, 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 the
coronavirus disease 2019 (COVID--19), [("suspension-by-order clause")]
Id. 	§ 2301(c)(2)(A) (hereinafter "section 2301"). 1 	In other words, under section 2301 's
suspension-by-order clause, an employer must show that (1) the operation of the business was
"fully or partially suspended" (2) "due to" (3) "orders from an appropriate governmental authority
limiting commerce, travel, or group meetings." Id.
JSmith alleges that it was an eligible employer entitled to ERC benefits under section
2301 's suspension-by-order clause. In the bankruptcy court, the United States moved for summary
judgment on the "order'' element, arguing that JSmith failed to cite a "qualifying order''-an
"order □ from an appropriate governmental authority limiting commerce, travel, 	or group
meetings." 	CARES Act § 2301(c)(2)(A)(ii)(I); In re JSmith Civ.. LLC, 674 B.R. at 214; see
1 The "eligible employer'' definition was not altered substantively in 2021. 	See In re
JSmith Civ.• LLC, 674 B.R. at 213 n.4. 	The law applicable to 2020's Q2 and 2021 's Q2 is not
codified. See id. The codified statute (26 U.S.C. § 3134) applies only to 2021 's Q3, which is not
at issue in this appeal. See id. Thus, the court cites section 2301 of the CARES Act for the "eligible
employer'' definition.
2
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[D.E. 7-3] I, 12-18. In the bankruptcy court, the United States conceded that a genuine issue of
material fact existed about ''whether JSmith experienced a suspension of business during the
relevant quarters[;]" therefore, the bankruptcy court "assumed for purposes of th[e] order that
JSmith did shut down some aspects of its business." In re JSmith Civ., LLC, 674 B.R. at 214; see
[D.E. 7-3] 10--12 . 	Thus, the bankruptcy court decided only whether JSmith was subject to a
qualifying government order under section 230 l's suspension-by-order clause. See CARES Act §
230l(c)(2)(A)(ii)(I); In re JSmith Civ.• LLC, 674 B.R. at 215 (observing that JSmith must prove
that "it was subject to a compulsory governmental mandate limiting commerce, travel, or group
meetings that was issued because of the pandemic").
The bankruptcy court initially determined the meaning of "order" in section 2301 's
suspension-by-order clause. 	The bankruptcy court compared the meaning of "order'' and
"recommendation" as defined in Black's Law Dictionary. 	See In re JSmith Civ.• LLC, 674 B.R.
at 214-15. 	Compare Order, Black's Law Dictiomuy (12th ed. 2024) (defining "order'' as a
"command, direction, or instruction"), with Recommendation, Black's Law Dictionacy (12th ed.
2024) ("A suggestion that someone should choose a particular thing or person that one thinks
particularly good or meritorious."). 	Based on that comparison, the bankruptcy court held that
"order" means a "compulsory'' directive that imposes ''binding requirements or repercussions for
noncompliance." In re JSmith Civ.• LLC, 674 B.R. at 215 (citation omitted).
Next, the bankruptcy court analyzed whether JSmith was subject to a qualifying order
under section 2301 's suspension-by-order clause. 	In doing so, the bankruptcy court examined
North Carolina Executive Order 121 ("EO 121"), "Other Executive Orders," and policies from
other state and federal agencies such as the Center for Disease Control ("CDC"), the Occupational
3
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Safety and Health Administration ("OSHA"), the United States Department of Labor (''USDOL"),
and the North Carolina Department of Labor (''NCDOL"). See id. at 215-18.
As for EO 121, on March 27, 2020, the North Carolina Governor required all non-essential
businesses to close. 	See North Carolina, Office of the Governor, Exec. Ord. No. 121 (Mar. 27,
2020) [hereinafter Exec. Ord. 121]. In the bankruptcy court, the United States and JSmith agreed
that EO 121 is a qualifying order under section 2301 's suspension-by-order clause. 	See In re
JSmith Civ., LLC, 674 B.R. at 215. 	But the United States argued that JSmith, a construction
company, was exempt from mandatory closure under EO 121. In support, the United States noted
that EO 121 exempted from the closure order "Essential Infrastructure Operations," which
"includes, but is not limited to:"
[F]ood and beverage production, distribution, fulfillment centers, storage facilities;
construction (including. but not limited to, construction required in remonse to this
public health emergency. ho§Pital construction, construction of long term care
facilities. public works construction, school construction, and essential commercial
and housing construction); building and grounds management and maintenance
including landscaping; airport operations; operation and maintenance of utilities,
including 	water, 	sewer, 	and 	gas; 	electrical 	(including 	power 	generation,
distribution, and production of raw materials); distribution centers; oil and biofuel
refining; roads, highways, railroads, and public transportation; ports; cybersecurity
operations; flood control; solid waste and recycling collection and removal; and
internet, video and telecommunications systems (including the provision of
essential global, national and local infrastructure for computing services, business
infrastructure, communications, and web-based services).
Exec. Ord. 121 § 2(C)(5) (emphasis added).
In opposing summary judgment, JSmith argued that EO 121 only exempted "critical
infrastructure" construction as demonstrated by the subsequent parenthetical in section 2(c)(5) of
EO 121 . JSmith then argued that it halted its Commercial Site Work Division because it believed
it did not fit within the exempted "construction" definition in section 2(C)(5) of EO 121. See In
re JSmith Civ., LLC, 674 B.R. at 216; Exec. Ord. 121 § 2(C)(5) (exempting "construction
(including, but not limited to, construction required in response to this public health emergency,
4
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hospital construction, construction of long term care facilities, public works construction, school
construction, and essential commercial and housing construction")).
The bankruptcy court rejected JSmith's argument and held that EO 121 specifically defined
"Essential Infrastructure Operations" to include "construction," and then ''broadly defined" the
term "construction." 	In re JSmith Civ., LLC, 674 B.R. at 216. 	The bankruptcy court explained
that the "parenthetical listing specific types" of construction is "illustrative, not exhaustive." Id.;
see Exec. Ord. 121 § 2(C)(5) (beginning the parenthetical with "including, but not limited to").
The bankruptcy court concluded that "[t]he entire category of construction work was specifically
exempted[;]" therefore, JSmith was exempt from EO 121 's closure directive. 	In re JSmith Civ.,
LLC, 674 B.R. at 216.
As for "Other Executive Orders," JSmith mentioned various other executive orders in its
submission to the bankruptcy court but did not discuss those other executive orders in responding
to the United States' motion for summary judgment. 	See [D .E. 7-3] 475-79, 489-95. 	The
bankruptcy court held that these other executive orders were not qualifying orders because JSmith
"failed to show any evidence regarding how these orders required JSmith to suspend its
operations." In re JSmith Civ., LLC, 674 B.R. at 216-17.
As for certain policies of the CDC, OSHA, USDOL, and NCDOL, the United States argued
that the policies were not orders under section 2301 's suspension-by-order clause but merely
recommendations from various governmental authorities. 	See [D.E. 7-3] 16-18. 	In opposing
summary judgment, JSmith argued that NCDOL adopted and enforced CDC and OSHA guidelines
through OSHA's General Duty Clause; therefore, the NCDOL incorporated the CDC's and
OSHA's recommendations into enforceable orders. See id. at 492-94.
5
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The bankruptcy court held that "nothing from the guidance and plans issued by or from
OSHA, the CDC, and the NCDOL, qualify as a governmental order under'' section 2301 's
suspension-by-order clause. In re JSmith Civ.. LLC, 674 B.R. at 218. In reaching that conclusion,
the bankruptcy court analyzed whether a "partial suspension of business operations" occurred. Id.
at 217. That suspension issue involves a different element under section 230 l's suspension-by-
order clause. See id. The bankruptcy court also held that even ifNCDOL enforced the CDC and
OSHA guidelines through OSHA's General Duty Clause, such enforcement did not transform the
guidelines from recommendations to an enforceable order fully or partially suspending the
operation of JSmith's business. See id. at 217-18.
After concluding that JSmith was not subject to a qualifying order under section 2301 's
suspension-by-order clause, the bankruptcy court granted the United States' motion for summary
judgment. See id. at 218; [D.E. 1-1] 1-2. On August 22, 2025, JSmith appealed. See [D .E. l].
II.
This court has jurisdiction over this bankruptcy appeal under 28 U.S.C. § 158(a)(l). On
appeal, a district court reviews a bankruptcy court's legal determinations de novo and its factual
findings for clear error. See In re White, 487 F.3d 199,204 (4th Cir. 2007); In re Official Comm.
of Unsecured Creditors for Dornier Aviation (N. Am.). Inc., 453 F.3d 225, 231 (4th Cir. 2006);
Schlossberg v. Barney. 380 F.3d 174, 178 (4th Cir. 2004). "[I]n reviewing a bankruptcy case on
appeal, a district court can consider only that evidence which was presented before the bankruptcy
court and made a part of the record." In re Bartlett, 92 B.R. 142, 143 (E.D.N.C. 1988) see Union
Bank v. Blum, 460 F.2d 197,202 (9th Cir. 1972); In re Moss, 266 B.R. 697, 702 (B.A.P. 8th Cir.
2001). 	The district court may "affirm, modify, or reverse" the bankruptcy court's "order, or
remand with instructions for further proceedings." Gallagher v. Cohen, 659 B.R. 57, 62 (D . Md.
6
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2024) (citation omitted); see Harman v. Levin, 772 F.2d 1150, 1153 n.3 (4th Cir. 1985); Fanning
v. Burnett, 660 B.R. 207, 211 (E.D.N.C. 2024); R&J Contractor Servs., LLC v. Vancamp. 652
B.R. 237,241 (D. Md. 2023).
Rule 56 of the Federal Rules of Civil Procedure applies to motions for summary judgment
filed in bankruptcy proceedings. See Fed. R. Bankr. P. 7056. Summary judgment is appropriate
when, after reviewing the record as a whole, the court determines that no genuine issue of material
fact exists, and the moving party is entitled to judgment as a matter of law. 	See Fed. R. Civ. P.
56(a); Scott v. Harris, 550 U.S. 372, 378, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The party seeking summary judgment initially must demonstrate the absence
of a genuine issue of material fact or the absence of evidence to support the nonmoving party's
case. See Celotex C01p. v. Catrett, 477 U.S. 317,325 (1986). Once the moving party has met its
burden, the nonmoving party may not rest on the allegations or denials in its pleading, see
Anderson, 477 U.S. at 248-49, but "must come forward with specific facts showing that there is a
genuine issue for trial." 	Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (cleaned up). A court reviewing a motion for summary judgment should determine whether
a genuine issue of material fact exists for trial. 	See Anderson, 477 U.S. at 249. In making this
determination, the court must view the evidence and the inferences drawn therefrom in the light
most favorable to the nonmoving party. See Harris, 550 U.S. at 378.
A genuine issue of material fact exists if there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. See Anderson, 4 77 U.S. at 249. "The
mere existence of a scintilla of evidence in support of the [nonmoving party's] position [is]
insufficient .... " 	Id. at 252; see Beale v. Hardy. 769 F.2d 213, 214 (4th Cir. 1985) (''The
nonmoving party, however, cannot create a genuine issue of material fact through mere speculation
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or the building of one inference upon another."). 	Only factual disputes that affect the outcome
under substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248.
A.
Initially, the court addresses the meaning of "order'' in section 2301(c)(2)(A). "[A]bsent
an indication Congress intended [a term] to bear some different import," a court must give the term
its "ordinary, contemporary, common meaning." In re Total Realty Mgmt., LLC, 706 F.3d 245,
251 (4th Cir. 2013) (citation omitted). If the term "is unambiguous," then a court's analysis must
end with the statute's plain language. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002); see
In re Sunterra Com .• 361 F.3d 257,265 (4th Cir. 2004).
"Order'' means a compulsory command or directive and not merely a recommendation.
Compare Order, Black's Law Dictionary (12th ed. 2024) (defining "order'' as a "command,
direction, or instruction), with Recommendation, Black's Law Dictionary (12th ed. 2024) ("A
suggestion that someone should choose a particular thing or person that one thinks particularly
good or meritorious."). See Lawrence Gen. Hosp. v. Cont'l Cas. Co., 90 F.4th 593, 604 (1st Cir.
2024) (explaining that an "order'' must be "compulsory''). 	Thus, to qualify as an order under
section 2301 's suspension-by-order clause, a government directive must compel a certain course
of conduct through binding requirements or repercussions for noncompliance. See, ~ Lawrence
Gen. Hos,p .• 90 F.4th at 605 (explaining that certain guidance issued during the COVID-19
pandemic 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."); Ne. Health Servs., LLC v. United States, 181 Fed. Cl. 566,577 (Fed. Cl. 2026) (holding that
particular "guidance" qualified as an "order'' under the suspension-by-order clause because "[t]o
the extent businesses failed to comply with mandatory directives contained in that guidance, they
8
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similarly risked civil penalties, criminal penalties, and loss of their clinic licenses."); Baxter Senior
Living, LLC v. Zurich Am. Ins., No. 22-44, 2025 WL 1207151, at *6 (D. AlaskaApr. 25, 2025)
(unpublished).
B.
EO 121 exempted "Essential Infrastructure Operations" from mandatory closure. 	See
Exec. Ord. 	121 	§ 2. 	EO 121 describes the term "Essential Infrastructure Operations" as
"includ[ing], but ... not limited to:"
[F]ood and beverage production, distribution, fulfillment centers, storage facilities;
construction (including. but not limited 1Q, construction required in res_ponse to this
public health emergency. hos.pita! construction. construction of long term care
facilities. public works construction, school construction. and essential commercial
and housing construction); building and grounds management and maintenance
including landscaping; airport operations; operation and maintenance of utilities,
including 	water, 	sewer, 	and 	gas; 	electrical 	(including 	power 	generation,
distribution, and production of raw materials); distribution centers; oil and biofuel
refining; roads, highways, railroads, and public transportation; ports; cybersecurity
operations; flood control; solid waste and recycling collection and removal; and
internet, video and telecommunications systems (including the provision of
essential global, national and local infrastructure for computing services, business
infrastructure, communications, and web-based services).
Id. § 2(C)(5) (emphasis added).
Statutory interpretation begins with the text. See Barnhart, 534 U.S. at 450; Othi v. Holder,
734 F.3d 259,265 (4th Cir. 2013). To determine a text's plain meaning, this court looks not only
to the text's language, but also to the context in which that language appears, and the broader
context as a whole. See King v. Burwell. 576 U.S. 473, 486 (2015); Country Vmtner ofN.C., LLC
v. E. & J. Gallo Wmery, Inc., 718 F.3d 249. 258 (4th Cir. 2013). 	Typically. the court gives
undefined terms their "ordinary or natural" meanings. 	HollyFrontier Cheyenne Refin., LLC v.
Renewable FuelsAss'n. 594 U.S. 382,388 (2021) (citation omitted). If a text is ambiguous, this
court may examine other sources of meaning such as canons of construction or background legal
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principles. See Bond v. United States. 572 U.S. 844, 859-60 (2014); Barnhart, 534 U.S. at 461-
62.
Ordinarily, "construction" means "[t]he act of building by combining or arranging parts or
elements." Construction. Black's Law Dictionary (12th ed. 2024); see Webster"s II New Riverside
University Dictionary 303 (2d ed. 1988) (defining "construction" as "[t]he act or process of
constructing," with "constructing" being defined as "put[ting] together by assembling parts;
build[ing]"); see,~. Am. States Ins. v. Edgerton, No. CV 07-239, 2008 WL 4239000, at *7 (D .
Idaho Sept. 3, 2008) (unpublished) (defining "construction" as the ''building of a new structure or
the functional equivalent, such as additions and renovations. that substantially improve or modify
a structure"); S. Utah Wilderness All. v. Bureau of Land Mgmt.. 147 F. Supp. 2d 1130, 1139 (D.
Utah 2001) (holding that "construction." through its ordinary meaning, requires some "form of
purposeful. physical building or improving"); Myers v. Merrimack Mut. Fire Ins .. 601 F. Supp.
620,623 (C.D. m. 1985) (defining "construction" as ''the building or erection of something which
theretofore did not exist"). aff' cl, 788 F.2d 468 (7th Cir. 1986). The United States urges the court
to adopt the ordinary meaning of"construction." See [D .E. 20] 20--22.
JSmith responds that because EO 121 uses the term "construction" in a list after the phrase
"Essential Infrastructure Operations," then the phrase "Essential Infrastructure Operations"
informs what the term "construction" means in EO 121. See [D.E. 14] 18-19. At bottom. JSmith
argues that including the term "construction" after the phrase "Essential Infrastructure Operations"
requires the court to narrow the ordinary meaning of "construction." See id.
Generally. a court may find that "ambiguity exists when a [text] is capable of being
understood by reasonably well-informed persons in two or more different senses." United States
v. Selby, 333 F. Supp. 2d 367. 370 (D. Md. 2004) (cleaned up); see Robinson v. Shell Oil Co .• 519
10
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U.S. 337,341 (1997); Universal Mar. Serv. Com. v. Wright, 155 F.3d 311, 319-20 (4th Cir. 1998);
United States v. Iron Mountain Mines. Inc., 812 F. Supp. 1528, 1557 (E.D. Cal. 1992). 	When
determining the existence of ambiguity, the court must consider "not only the bare meaning of the
word but also its placement and purpose in the" text. Bailey v. United States, 516 U.S. 137, 145
(1995); see Robinson, 519 U.S. at 341; United States v. Jennings, 323 F.3d 263, 266 (4th Cir.
2003); Universal Mar. Serv. Com.. 155 F.3d at 319-20.
The court must interpret the text of EO 121 as a whole. 	See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (''Perhaps no interpretive fault
is more common than the failure to follow the whole-text canon, which calls on the judicial
interpreter to consider the entire text, in view of its structure and of the physical and logical relation
of its many parts."); King v. St. Vmcent's Ho§P., 502 U.S. 215, 221 (1991) ("[W]e do nothing
more, of course, than follow the cardinal rule that a statute is to be read as a whole since the
meaning of statutory language, plain or not, depends on context."); Biden v. Nebraska, 600 U.S.
477, 511 (2023) (Barrett, J., concurring) (''To strip a word from its context is to strip that word of
its meaning."). And in the context ofEO 121, "construction" operates within a list of industries
qualifying the scope of the phrase, "Essential Infrastructure Operations." 	See Exec. Ord. 121 §
2(C)(5). Thus, the court interprets the term "construction" in EO 121 in this context.
JSmith contends that because EO 121 includes the term "construction" in a list of
"Essential Infrastructure Operations," EO 121 only exempts "construction businesses with respect
to construction of essential infrastructure." 	[D.E. 14] 18-19; cf. Essential, Webster's II New
Riverside University Dictionary (2d ed. 1988) (defining "essential" as "indispensable"); Essential,
Black's Law Dictionary (12th ed. 2024) (defining "essential" as "[o]fthe utmost importance; basic
and necessary''). The court rejects JSmith's argument.
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EO 121 exempts from closure "Essential Infrastructure Operations,, and then explains that
phrase with a list of operations that includes "construction.,, Notably, EO 121 states that "Essential
Infrastructure Operations shall be construed broadly to avoid any impact to essential infrastructure,
broadly defined.,, Exec. Ord. 121 § 2(C)(5). EO 121,s express text thereby broadens the scope of
the phrase "Essential Infrastructure Operationst and the term "construction,,, beyond JSmith,s
interpretation. 	Thus, EO 121 does not limit EO 121,s exemption to construction of essential
infrastructure.
As for EO 12Ps enumerated examples of "Essential Infrastructure Operations/, EO 121
includes the term "construction,, in the list of "Essential Infrastructure Operationst and that phrase
can be "given more precise content by the neighboring words with which it is associated.,, United
States v. Stevens, 559 U.S. 460,474 (2010) (citation omitted); see Maracich v. Spears, 570 U.S.
48, 62-63 (2013); Exec. Ord. 121 § 2(C)(5). The list of"Essential Infrastructure Operations,, also
includes "landscapint, and "storage facilities.,, 	Exec. Ord. 121 § 2(C)(5). 	''Landscape,, means
''to adorn or improve [a section of ground] by contouring the land and planting flowers, shrubs, or
trees.,, Landscape, Webster,s II New Riverside University Dictionary (2d ed. 1988). 	"Storage,,
means ''the act of storing goods.,, Storage, Webster,s II New Riverside University Dictionary (2d
ed. 1988). 	"Facilities,, means "something created to serve a particular function.,, 	Facilities,
Webster,s II New Riverside University Dictionary (2d ed. 1988). Accordingly, "storage facilities,,
refers to business entities created for people to store goods.
"Storage facilities,, and "landscaping,, are not operations deemed essential or indispensable
"in common parlance.,, Groff v. DeJoy. 600 U.S. 447, 468 (2023). 	Thus, a "reasonable reader,
fully competent in the language,, would not read EO 121,s inclusion of "storage facilities,, and
"landscaping,, in its exemptions and ''underst[and] the text,, to limit exemptions to only essential
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or indispensable operations. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 33 (2012).
As for EO 121,s specific examples of construction, EO 121 describes "construction,, as
"including, but not limited to, construction required in response to this public health emergency,
hospital construction, construction of long term care facilities, public works construction, school
construction, and essential commercial and housing construction." Exec. Ord. 121 § 2(C)(5). EO
121,s use of the phrase "including, but not limited to,, means that the list is not exhaustive. 	See,
~ Google LLC v. Oracle Am., Inc., 593 U.S. 1, 18-19 (2021) (finding that a list was not
exhaustive because "includes,, preceded the list); United States v. Nixon, 130 F.4th 420,431 (4th
Cir. 2025) (''There is no indication ... that this list is not exhaustive, as would be made clear by
the inclusion of the phrase[] 'including but not limited to.,,,). Thus, "construction'' is not limited
to the construction examples enumerated in EO 121.
EO 121 's construction examples also do not suggest that "construction" is limited to only
essential or indispensable infrastructure. When a list includes "a catchall phrase ... . the catchall
must be interpreted in light of its surrounding context and read to embrace only objects similar in
nature to the specific examples.', 	Harrington v. Purdue Pharma L.P., 603 U.S. 204, 217 (2024)
(cleaned up). Accordingly, the types of construction qualifying for an exemption through EO 121 's
"including, but not limited to', informs the specific examples of construction in EO 121.
As for the specific examples of construction in EO 121, they are not limited to essential or
indispensable infrastructure. See Exec. Ord. 121 § 2(C)(5). To illustrate this conclusion, examine
the last construction example listed in EO 121: "essential commercial and housing construction."
Id. (emphasis added). The other examples of construction in EO 121 lack the "essential" qualifier.
See id. 	When "particular language [is included) in one section ... but omit[ted] ... from a
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neighbor, [courts] normally understand that difference in language to convey a difference in
meaning." Brittner v. United States, 598 U.S. 85, 94 (2023). The inclusion of"essential" before
the "commercial and housing" construction example and the omission of "essential'' before the
other construction examples shows that the list is not limited to indispensable or essential
infrastructure.
As used in EO 121, "construction" is not limited to indispensable or essential infrastructure,
and the court declines to abandon the ordinary definition of"construction." The bankruptcy court
properly construed EO 121, including the phrase "Essential Infrastructure Operations" and the
term "construction." Thus, this court affirms the bankruptcy court's holding that JSmith was fully
exempt from EO 121 's mandatory shutdown because of its status as a construction company.
C.
As for the "Other Executive Orders" that JSmith listed in its submissions in the bankruptcy
court, the bankruptcy court held that those other executive orders were not qualifying orders
because JSmith "failed to show any evidence regarding how these orders required JSmith to
suspend its operations." In re JSmith Civ., LLC, 674 B.R. at 216. 2 Notably, in seeking summary
judgment, the United States argued that most of the executive orders mentioned in JSmith's
complaint and depositions lifted mandates. 	Thus, the United States argued that such executive
orders were not qualifying orders-Le., government directives that compel a certain course of
conduct through binding requirements or repercussions for noncompliance-under section 2301 's
suspension-by-order clause. 	See [D.E. 7-3] 17-18; CARES Act § 2301(c)(2)(A)(ii)(I). 	In the
2 In its statement of material facts, JSmith lists Executive Order Nos. 116, 117, 121, 135,
138, 141, 147, 151, 155, 163, 169, 170, 176, 181, 188, 189, 195, and 204. See [D.E. 7-3] 475-79.
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bankruptcy court, JSmith did not respond to the United States' argument or discuss any of these
other Executive Orders. See [D.E. 7-3] 475-79, 489-95.
In the bankruptcy court and on appeal, JSmith failed to come forward with specific facts
showing that these other Executive Orders qualified as orders under section 2301 's suspension-by-
order clause. 	See Matsushita Elec. Indus. Co., 475 U.S. at 587; Fed. R. Civ. P. 56(e). Thus, the
court affirms the bankruptcy court's holding that these other Executive Orders are not qualifying
orders.
D.
As for the NCDOL complaint about operating without proper COVID-19 protocols, the
bankruptcy court concluded that the NCDOL complaint did not "qualify as an order under the
ERC." In re JSmith Civ., LLC, 674 B.R. at 218. 	The bankruptcy court found that the NCDOL
complaint ''was based on a lack of proper protocols, not for operating a business that was not
allowed to operate by a government order." Id. The NCDOL complaint was also not a compulsory
command directing JSmith to fully or partially suspend its operations. 	See Order, Black's Law
Dictionary (12th ed. 2024). Thus, the court affirms the bankruptcy court's holding that the NCDOL
complaint is not an "order'' under section 2301 's suspension-by-order clause.
As for the CDC and OSHA policies, the bankruptcy court seemingly granted the United
States summary judgment based on the bankruptcy court's finding that JSmith did not fully or
partially suspend operations because of the policies. See In re JSmith Civ., LLC, 674 B.R. at 217.
The bankruptcy court explained that the court "need not resolve" whether the CDC and OSHA
policies were "a binding regulation" because ''there has been no showing that ... [JSmith] fully or
partially suspended [its] operations." Id. 	Later in its order, the bankruptcy court stated that the
CDC and OSHA policies did not "qualify as ... governmental order[s]." Id. at 218.
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In the bankruptcy court, the United States conceded that a genuine issue of material fact
existed about whether JSmith experienced a partial suspension during Q2 2020 and Q2 2021. See
[D.E. 7-3] 10--12; In re JSmith Civ., LLC, 674 B.R. at 214; cf. Clark v. Sweeney, 607 U.S. 7, 9-
10 (2025) (per curiam). Thus, whether the bankruptcy court granted the United States summary
judgment because the CDC and OSHA policies were not "orders" or based on the bankruptcy
court's finding that JSmith did not fully or partially suspend its operations is material. Moreover,
if the bankruptcy court granted the United States summary judgment because the CDC and OSHA
policies were not "orders," the bankruptcy court did not explain that conclusion. See In re JSmith
Civ., LLC, 674 B.R. at 217-18; cf. Lawrence Gen. Hom., 90 F.4th at 605; Ne. Health Servs., LLC,
181 Fed. Cl. At 577; Baxter Senior Living, LLC, 2025 WL 1207151, at *6.
As for the USDOL policy, the bankruptcy court did not explain why it granted the United
States summary judgment. 	See In re JSmith Civ., LLC, 674 B.R. at 217-18; cf. Lawrence Gen.
Hom .. 90 F.4th at 605; Ne. Health Servs., LLC, 181 Fed. Cl. at 577; Baxter Senior Living, LLC,
2025 WL 1207151, at *6.
In a bankruptcy appeal, this court is a "court of review, not first view." 	Public Interest
Legal Found., Inc. v. Wooten, 164 F.4th 362, 366 (4th Cir. 2026). 	Thus, the court vacates and
remands to the bankruptcy court to explain why it granted the United States summary judgment as
to the CDC, OSHA, and USDOL policies. See, ~ Behrmann v. Nat'l Heritage Found., 663 F.3d
704, 709 (4th Cir. 2011); Leavers v. McLaughlin, 648 F. Supp. 3d 671, 676 (D. Md. 2023); In re
Spangler, 56 B.R. 990,991 (D. Md. 1986).
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m.
In sum, the court AFFIRMS the bankruptcy court's interpretation ofEO 121 § 2(C)(5) and
related holding that appellant's Commercial Site Work Division was exempt from shutdown under
EO § 2(C)(5), AFFIRMS the bankruptcy court's holding that the "Other Executive Orders" are not
qualifying orders under section 2301 's suspension-by-order clause, AFFIRMS the bankruptcy
court's holding that the NCDOL complaint is not a qualifying order under section 2301 's
suspension-by-order clause, and VACATES and REMANDS for further proceedings about the
CDC, OSHA, and USDOL policies.
SO ORDERED. This JQ day of September, 2026.
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JSC.DEVERID
United States District Judge
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