Labor & Employment Law Daily Wrap Up, PROCEDURE—6th Cir.: Government immune from relief sought by Air Force reservist placed on inactive duty after refusing COVID vax, (May 13, 2025)

By Kathleen Kapusta, J.D.

The relief the reservist sought, lost drill pay and retirement points, “would not enforce a statutory mandate that ‘happens to be one of the payment of money.’”

Affirming the dismissal of the RFRA and First Amendment claims of an Air Force Reserve member who was placed on inactive status after his request for a religious exemption to the COVID-19 vaccination mandate was denied and he refused the vaccine, the Sixth Circuit explained that the lost drill pay and retirement points he sought was “retrospective compensation for a previous legal wrong—which is to say monetary damages.” Thus, his claim was barred by federal sovereign immunity (Poffenbarger v. Kendall, No. 24-3417 (6th Cir. May 12, 2025)).

Vaccine mandate. After the Secretary of Defense, in August 2021, mandated that all members of the armed forces be vaccinated against COVID-19, the then Secretary of the Air Force required all active-duty service members and reservists to be vaccinated. Although service members were allowed to seek medical, administrative, or religious exemptions, as of September 2022, it appeared that the Air Force had granted no exemptions based on religious grounds.

No Pay/No Points. The plaintiff, a First Lieutenant in the Air Force Reserve, sought a religious exemption, which was denied. When he refused the vaccination, he was issued a letter of reprimand and placed on “No Pay/No Points” status, during which he could not attend drills and thus could not earn pay and retirement points.

Claiming the vaccine mandate violated his rights under the Religious Freedom Restoration Act and the First Amendment, he sued seeking a declaration to that effect, an injunction barring the defendants from enforcing the injunction against him, and damages. He also sought to require the defendants to “restore any lost credit for points or pay” that he lost due to their illegal actions. The district court preliminarily enjoined the Air Force from taking further punitive action against the reservist during the pendency of the case.

Companion case. In the meantime, the court, in Doster v. Kendall, a companion case filed by the same attorneys challenging the mandate on the same grounds, certified a class of affected Air Force service members and enjoined the Air Force from taking further punitive action against them during the pendency of that case. In September 2022, the Sixth Circuit denied the Air Force’s motion for an emergency stay of the preliminary injunctions in that case and affirmed them on the merits two months later.

Rescinded. In January 2023, however, the Secretary of Defense rescinded the military’s COVID-19 vaccine mandate. The Supreme Court then vacated the Sixth Circuit’s decision in Doster and the appeals court remanded the case to the district court with instructions to vacate the preliminary injunction.

Moot. The district court then ordered briefing in this case as to whether it was moot. Finding that it was, the court dismissed the case.

On appeal, the reservist argued that the case was not moot because he had not received the $4,346 due for drill pay and the 24 retirement points he missed while on inactive status. Because it had the power, subject to the government’s sovereign immunity defense, to grant that relief, the court found the case was not moot.

Sovereign immunity. For its part, the government argued that the plaintiff’s claim for drill pay and retirement points, which was asserted against the Secretary of the Air Force and several Air Force officers in their official capacities, was barred by federal sovereign immunity. Because federal officials in their official capacity fall within the government’s sovereign immunity, the issue, said the court, was whether the government waived its immunity as to this claim.

RFRA waiver. Pursuant to the RFRA, which, the court observed, has waived the government’s immunity to some extent, a “person whose religious exercise has been burdened in violation of” the Act may “obtain appropriate relief against a government.” Noting that the defendants, in their official capacities, fell within the Act’s definition of a “government,” the court framed the issue as whether the claim for lost drill pay and retirement points against those officials was “appropriate relief” under the RFRA provision.

Appropriate relief. The court pointed to a Supreme Court decision holding that the phrase “appropriate relief” as used in a related statute did not unequivocally express an intent to waive the States’ “sovereign immunity to suits for damages.” Further, the court observed, every circuit court to have reached the issue has held that the phrase in the “RFRA does not authorize damages suits against the United States[.]” Agreeing, the Sixth Circuit found that “‘appropriate relief’ as used in RFRA is too vague a phrase to waive unequivocally the federal government’s immunity from damages suits.”

Money damages. Accordingly, said the court, though the reservist’s claim for lost drill pay and retirement points was barred if that relief amounted to money damages, that “a claim seeks an award of money does not necessarily mean it is a claim for money damages.” Citing to the Supreme Court’s 1988 decision in Bowen v. Massachusetts, the appeals court noted that “when the defendant has withheld a specific sum that a statute obligated the defendant to pay all along—then an order directing the defendant to pay that sum can be equitable relief rather than legal.”

But here, said the court, the reservist sought to enforce the RFRA, which, rather than mandating the payment of money, requires the government’s forbearance from interfering with a person’s exercise of religion. Moreover, said the court, the reservist was not entitled to the drill pay or retirement points under the RFRA. Indeed, under the military pay statutes, he had no entitlement to any compensation for drills that he did not actually attend. “Hence the relief he seeks would not enforce a statutory mandate that ‘happens to be one for the payment of money.’”

Statutory entitlement. Explaining instead that his statutory entitlement was to practice his religious faith without substantial interference from the government, the court noted that he “sought drill pay and retirement points not to prevent or undo that wrong, but as compensation for what he ‘lost due to Defendants’ illegal actions.’” Thus, the relief he sought was retrospective compensation for a previous legal wrong, or in other words, monetary damages. Accordingly, the court found the relief he sought was relief to which the government remained immune.

The case is No. 24-3417.

Judge: Kethledge, R.

Attorneys: Christopher Wiest (Law Offices of Chris Wiest), Thomas B. Bruns (Bruns Connell Vollmar & Armstrong), Aaron Siri (Siri & Glimstad), and Zachary Gottesman (Gottesman Law) for Michael Poffenbarger. Sarah Carroll, US. Department of Justice, for Frank Kendall, III, John D. DeGoes, John P. Healey, Major General D. Scott Durham, Lieutenant Colonel Michael R. Rubeling, and Colonel Douglas A. Perry.

Cases: Procedure ReligiousDiscrimination Covid19 RemediesDamages KentuckyNews MichiganNews OhioNews TennesseeNews