Petition for Writ of Certiorari — Hunter Doster, Individually and on Behalf of All Others Similarly Situated as a Class, et al., Petitioners v. Troy E. Meink, Secretary of the Air Force, et al.
Supreme Court briefOct 9, 2025
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No. _______
In the Supreme Court of the United States
________________
HUNTER DOSTER, ET AL., ON BEHALF OF
THEMSELVES AND OTHERS SIMILARLY SITUATED,
Petitioners,
v.
HON. TROY MEINK, In his official capacity as
Secretary of the Air Force, et al.,
________________
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
________________
PETITION FOR A WRIT OF CERTIORARI
________________
AARON SIRI
ELIZABETH A. BREHM
WENDY COX
SIRI & GLIMSTAD LLP
745 Fifth Ave.
Suite 500
New York, NY 10151
Thomas B. Bruns
Counsel of Record
BRUNS CONNELL
VOLLMAR & ARMSTRONG
4555 Lake Forrest Drive,
Suite 330
Cincinnati, OH 45202
Tel: 513/312-9890
tbruns@bcvalaw.com
Counsel for Petitioners
(additional counsel listed on inside cover)
CHRISTOPHER D. WIEST
CHRIS WIEST ATTORNEY AT
LAW, PLLC
50 East Rivercenter Blvd.
Suite 1280
Covington, KY 41011
Counsel for Petitioners
QUESTIONS PRESENTED
The Religious Freedom Restoration Act (“RFRA”)
permits courts to award “appropriate relief” against
the government. 42 U.S.C. § 2000bb-1. This includes
the equitable relief of reinstatement of back pay and
retirement benefits.
Here, the Air Force instituted a mandate for the
COVID-19 vaccine (“Vaccine Mandate”), but then
systemically denied religious exemption requests.
Petitioners sued, a class was certified, and
preliminary injunctive relief was ordered. In opposing
more encompassing preliminary injunctive relief,
Respondents
argued
that
RFRA
permitted
reinstatement of back pay and retirement points in
final judgment, which the district court accepted.
The Vaccine Mandate was rescinded by an act of
Congress. Respondents then took an about face and
claimed that restoration of back pay and retirement
points could not be awarded under RFRA and, as such,
the case was moot. The district court accepted this
argument and dismissed for mootness and the Sixth
Circuit affirmed. This petition follows.
The questions presented are:
1. Whether RFRA permits the equitable relief of
reinstatement, to include back pay and retirement
points.
2. Whether Respondents are judicially estopped
from arguing that back pay and retirement points may
not be awarded under RFRA when, a year earlier, they
successfully argued the opposite position to prevent
preliminary
injunctive
relief
extending
to
reinstatement of reservists.
(i)
ii
PARTIES TO THE PROCEEDING
The following individuals and entities were
Plaintiffs before the trial court and Appellants in the
Sixth Circuit: Hunter Doster, Jason Anderson,
McKenna Colantanio, Paul Clement, Joe Dills,
Benjamin Leiby, Brett Martin, Connor McCormick,
Heidi Mosher, Peter Norris, Patrick Pottinger, Alex
Ramsperger, Benjamin Rinaldi, Douglas Ruyle,
Christopher Schuldes, Edward Stapanon III, Adam
Theriault, Daniel Reineke, on behalf of themselves
and others similarly situated.
The following individuals were Defendants before
the trial court and Appellees in the Sixth Circuit Court
of Appeals: Hon. Frank Kendall III, in his official
capacity of Secretary of the Air Force, Lt. General
Robert I. Miller, in his official capacity as Surgeon
General of the Air Force, Lt. General Brian S.
Robinson, in his official capacity as Commander of Air
Education and Training Command, Lt. General John
P. Healy, in his official capacity as Commander of Air
Force Reserve Command, Lt. General Tony D.
Bauernfeind, in his official capacity as Commander of
Air Force Special Operations Command, and the
United States of America. Secretary Kendall has been
replaced by Secretary Troy Meink. General Miller has
been replaced by Lt. General John J. DeGoes. Lt.
General Michael Conley has replaced Lt. General
Bauernfeind.
iii
RELATED PROCEEDINGS
The proceedings directly related to this case are:
Doster v. Kendall, 54 F.4th 398 (6th Cir. 2022).
Kendall v. Doster, 144 S. Ct. 481 (2023).
Doster v. Kendall, 2024 WL 1156426 (S.D. Ohio,
Mar. 18, 2024).
Doster v. Kendall, 2025 WL 1369378 (6th Cir.
2025).
Poffenbarger v. Kendall, 2024 WL 1155965 (S.D.
Ohio, Mar. 18, 2024).
Poffenbarger v. Kendall, 137 F.4th 563 (6th Cir.
2025).
iv
TABLE OF CONTENTS
Questions Presented .................................................... i
Parties to the Proceeding ........................................... ii
Related Proceedings .................................................. iii
Table of Appendices .................................................... v
Table of Authorities ................................................... vi
Introduction ................................................................ 1
Opinions Below ........................................................... 3
Jurisdiction ................................................................. 3
Constitutional and Statutory Provisions Involved ..... 4
Statement ................................................................... 4
A. Factual Background ..................................... 4
B. Procedural Background .............................. 10
Reasons for Granting the Petition ........................... 16
I.
This Court should grant certiorari
because the decisions below undermine
RFRA and conflict with binding
precedent from this Court ........................... 16
II. Judicial
Estoppel
forecloses
Respondents’ arguments against back
pay and restitutionary relief ....................... 27
III. This case is important and is an ideal
vehicle .......................................................... 31
Conclusion................................................................. 32
v
TABLE OF APPENDICES
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED MAY 12, 2025 .......... 1a
APPENDIX B — JUDGMENT OF THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT, FILED MAY
12, 2025 .............................................................. 6a
APPENDIX C — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN
DISTRICT
OF
OHIO,
WESTERN DIVISION – CINCINNATI,
FILED MARCH 18, 2024 ................................... 8a
APPENDIX D — JUDGMENT OF THE
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF OHIO,
WESTERN DIVISION – CINCINNATI,
FILED MARCH 18, 2024 ................................. 21a
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Ala. Ass’n of Realtors v. HHS,
594 U.S. 758 (2021) ............................................. 30
Albemarle Co. v. Moody,
422 U.S. 405 (1975) ....................................... 21, 26
Barnick v. United States,
591 F.3d 1372 (Fed. Cir. 2010) ........................... 22
Bell v. Hood,
327 U.S. 678 (1946) ............................................. 21
Borst v. Chevron Corp.,
36 F.3d 1308 (5th Cir. 1994) ......................... 20, 23
Bowen v. Massachusetts,
487 U.S. 879 (1998) ............................................. 24
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ............................................. 31
Chafin v. Chafin,
568 U.S. 165 (2013) ............................................. 17
Chauffeurs, Teamsters & Helpers, Loc. No. 391 v.
Terry,
494 U.S. 558 (1990) ....................................... 20, 23
Chen v. Allstate Ins. Co.,
819 F.3d 1136 (9th Cir. 2016) ............................. 18
Chilcott v. Orr,
747 F.2d 29 (1st Cir. 1984) ........................... 12, 29
Church v. Biden,
573 F. Supp. 3d 118 (D.D.C. 2021) ............... 12, 29
vii
CIGNA Corp. v. Amara,
563 U.S. 421 (2011) ............................................. 22
Cimerman v. Cook,
561 Fed. Appx. 447 (6th Cir. 2014)..................... 21
CONRAIL v. Darrone,
465 U.S. 624 (1984) ............................................. 21
Crugher v. Prelesnik,
761 F.3d 610 (6th Cir. 2014) ............................... 21
Davis v. Wakelee,
156 U.S. 680 (1895) ............................................. 27
DeVargas v. Mason & Hanger-Silas Mason Co.,
911 F.2d 1377 (10th Cir. 1990),
cert. denied, 111 S. Ct. 799 (1991) ...................... 24
Dilley v. Alexander,
627 F.2d 407 U.S. App. D.C. 354
(D.C. Cir. 1980) .......................................................... 22
Doster v. Kendall,
596 F. Supp. 3d 995 (S.D. Ohio 2022) .. 1, 2, 13, 30
Doster v. Kendall,
2025 U.S. App. LEXIS 11679
(6th Cir. 2025) ................................................. 3, 16
Downie v. Independent Drivers Ass’n Pension Plan,
934 F.2d 1168 (10th Cir. 1991) ........................... 22
Firefighters Local Union No. 1784 v. Stotts,
467 U.S. 561 (1984) ............................................. 18
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc.,
528 U.S. 167 (2000) ........................................16-17
viii
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) ............................................. 31
Gleason v. Malcom,
718 F.2d 1044 (11th Cir. 1983) ........................... 24
Guitard v. U.S. Sec’y of Navy,
967 F.2d 737 (2d Cir. 1992) .......................... 12, 29
Harkless v. Sweeny Independent School Dist.,
427 F.2d 319 (5th Cir. 1979) ............................... 20
Hartikka v. United States,
754 F.2d 1516 (9th Cir. 1985) ....................... 12, 29
Howe v. City of Akron,
801 F.3d 718 (6th Cir. 2015) ............................... 21
Hubbard v. Administrator, EPA,
983 F.2d 531 (D.C. Cir. 1992) ....................... 23, 24
Hunter v. Underwood,
471 U.S. 222 (1985) ............................................. 17
Knox v. SEIU, Local 1000,
567 U.S. 298 (2012) ............................................. 17
Kolstad v. ADA,
527 U.S. 526 (1999) .................................. 19, 20-21
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) ............................................. 20
Mertens v. Hewitt Assocs.,
508 U.S. 248 (1993) ............................................. 21
Miss. State Chapter, Operation Push, Inc. v. Mabus,
932 F.2d 400 (5th Cir. 1991) ............................... 17
N.C. State Conference of NAACP v. McCrory,
831 F.3d 204 (4th Cir. 2016) ............................... 17
ix
New Hampshire v. Maine,
532 U.S. 742 (2001) ................................. 28, 29, 30
Oppenheim v. Campbell,
571 F.2d 660 (D.C. Cir. 1978) ............................. 22
Pegram v. Herdrich,
530 U.S. 211 (2000) ............................................. 28
Porter v. Warner Holding Co.,
328 U.S. 395 (1946) ............................................. 20
Rankin v. McPherson,
483 U.S. 378 (1987) ............................................. 20
Schelske v. Austin,
2023 U.S. Dist. LEXIS 163101
(N.D. Tex. 2023) .......................... 18, 19, 20, 21, 23
Sibron v. New York,
392 U.S. 40 (1968) ............................................... 17
Tanzin v. Tanvir,
592 U.S. 43 (2020) ............................................... 19
Teamsters v. Terry,
494 U.S. 558 (1990) ....................................... 21, 23
Tull v. United States,
481 U.S. 412 (1987) ....................................... 20, 23
Turker v. Ohio Dep’t of Rehaabilitation &
Corrections,
157 F.3d 453 (6th Cir. 1998) ............................... 21
Twumasi-Ankrah v. Checkr, Inc.,
954 F.3d 938 (6th Cir. 2020) ................................. 5
U.S. Navy Seals 1-26 v. Biden,
27 F.4th 336 (5th Cir. 2021) ............................... 20
x
Ulmet v. United States,
888 F.2d 1028 (4th Cir. 1989) ............................. 24
United States v. Burke,
504 U.S. 229 (1992) ............................................. 22
United States v. Concentrated Phosphate Export Assn.,
393 U.S. 199 (1968) ............................................. 17
United States v. Marin,
651 F.2d 24 (1st Cir. 1981) ................................. 26
United States v. Universal Mgmt. Servs.,
191 F.3d 750 (6th Cir. 1999) ............................... 27
United States v. W. T. Grant Co.,
345 U.S. 629 (1953) ............................................. 22
Wenrich v. Empowered Mgmt. Sols. LLC,
2019 U.S. Dist. LEXIS 130041 (D. Colo. 2019) ...... 25
West v. Gibson,
527 U.S. 212 (1999) ....................................... 19, 21
Whole Woman’s Health v. Hellerstedt,
579 U.S. 582 (2016) ............................................. 26
Wooten v. Housing Authority of Dallas,
723 F.2d 390 (5th Cir. 1983) ............................... 18
Statutes and Regulations
28 U.S.C. § 1346(a)(2), Tucker Act ....................... 4, 23
28 U.S.C. § 1254(1) ...................................................... 4
37 U.S.C. § 206 ...................................................... 4, 23
42 U.S.C. §2000bb-1(c) ............................................. 22
42 U.S.C. § 2000bb – bb-4, Religious Freedom
Restoration Act of 1993 (“RFRA”) ......................... 4
xi
Fed. R. Civ. P. 54(c) ................................................... 26
18 Moore’s Federal Practice § 134.30, p. 134-62
(3d ed. 2000) ........................................................ 28
18 C. Wright, A. Miller, & E. Cooper, Federal Practice
and Procedure § 4477, p. 782 (1981) .................. 28
Other Authorities
Air Force Instruction 52-201, https://static.epublishing.af.mil/production/1/af_hc/publica
tion/dafi52-201/dafi52-201.pdf (last accessed
8/22/2022) .............................................................. 4
Department of Defense Instruction 1300.17,
https://www.esd.whs.mil/Portals/54/Docume
nts/DD/issuances/dodi/130017p.pdf
(last
accessed 8/22/2022) ............................................... 4
https://www.af.mil/News/ArticleDisplay/Article/2882742/daf-processesreligious-accommodations-requests/
(last
accessed 8/22/2022) ............................................4-5
https://www.af.mil/News/ArticleDisplay/Article/2959594/daf-covid-19statistics-march-2022/ (last accessed 9/17/2022) ....... 6
INTRODUCTION
Respondents,
the
United
States
and
Department of the Air Force officials, sued in their
official capacities (hereinafter the “Government” or
“Respondents”), implemented a Vaccine Mandate.
Plaintiffs were active-duty service members and
reservists of the Air Force, most of whom were
stationed at Wright Patterson Air Force Base in Ohio.
The Government illegally and systemically denied the
vast majority of religious accommodation requests to
its Vaccine Mandate, including Plaintiffs’ requests.
Two of the named Plaintiffs, Senior Airman Joseph
Dills (“SRA Dills”) and Senior Master Sergeant Chris
Schuldes (“SMSgt. Schuldes”), and numerous
members of the class, all of whom refused to
compromise their well-founded religious beliefs by
receiving the COVID-19 vaccine, were disciplined by
the Government. This included reprimands in their
files, being removed from active reserve service and
being placed on a “no points, no pay” status effective
January 2022. That meant Plaintiffs (and similarly
situated class members) could not attend drills,
receive pay for attending those drills, or receive points
towards their military retirements.
In March 2022, Plaintiffs moved for a
preliminary injunction and sought restoration to
reserve duty and restoration of lost pay and lost
retirement points. The district court issued a
preliminary injunction in favor of the named
Plaintiffs, but did not include a restoration to duty for
Plaintiff reservists nor did it restore their lost pay or
retirement points. Doster v. Kendall, 596 F. Supp. 3d
(1)
2
995 (S.D. Ohio 2022). This was because the
Government argued, and the district court accepted,
that in final judgment Plaintiffs could receive
reinstatement relief including restoration of back pay
and back retirement points. Doster, 596 F. Supp. 3d
995, 1019. Thus, the district court determined the
absence of that relief did not constitute irreparable
harm because subsequent final judgment could afford
that relief. Id.
Later, a class was certified, and the injunctive
relief was extended to restore reservist class members
to a pay and points status as of July 2022. Doster v.
Kendall, 342 F.R.D. 117 (S.D. Ohio 2022); Doster v.
Kendall, 2022 U.S. Dist. LEXIS 137068 (S.D. Ohio
2022). See Doster v. Kendall, 48 F.4th 608 (6th Cir.
2022).
In December 2022, Congress enacted legislation
directing the Department of Defense 1 and its
component branches to repeal the Vaccine Mandate.
In January and February of 2023, Respondents took
steps to remedy most adverse actions relating to the
Vaccine Mandate, such as removing reprimands from
service records, but they declined to fully remedy the
consequences of their illegal discrimination, to include
refusing to restore reservist Plaintiffs’ records to
0F
1 Pursuant to Executive Order signed by President Donald J.
Trump on September 5, 2025, the Department of Defense is now
titled the Department of War; however, this Petition refers to the
Department by its former name which was in place during the
actions underlying this Petition.
3
reflect continued reserve service from January to July
of 2022, refusing to restore Plaintiffs’ lost retirement
points for that same period, and refusing to restore
lost back pay for that same period.
Respondents then moved to dismiss on the basis
of mootness and pulled a bait and switch, arguing,
contrary to their argument at the preliminary
injunction stage, that the district court was “without
authority” to correct the back pay and back points
issue. The district court erroneously concluded that
RFRA’s “appropriate relief” did not extend to equitable
remedies such as reinstatement and restoration of
back pay and retirement points, and thus the district
court could not order relief for the remaining harm.
The Sixth Circuit affirmed, erroneously believing the
relief sought had not been requested in Plaintiffs’
complaint (despite the fact that it had been requested
from the outset of the case). Doster, 2025 U.S. App.
LEXIS 11679. This petition follows.
The petition for a writ of certiorari should be
granted, and the Sixth Circuit’s holding should be
reversed.
OPINIONS BELOW
The Sixth Circuit’s opinion (App. 1a-5a) is
reported at 2025 WL 1369378. The district court’s
opinion (App. 8a-20a) is reported at 2024 WL 1156426.
JURISDICTION
The Sixth Circuit entered judgment on May 12,
2025. (App.6a). Circuit Justice Kavanaugh granted an
4
extension of time to file this petition to October 9,
2025. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
A. 37 U.S.C. § 206
B. 42 U.S.C. §2000bb-42 U.S.C. §2000bb-4,
Religious Freedom Restoration Act of 1993
(“RFRA”)
C. 28 U.S.C. § 1346(a)(2), Tucker Act
STATEMENT
A. Factual Background
The Department of the Air Force (“DAF”) had a
Vaccine Mandate for COVID-19 imposed by the
Secretary of the Air Force (“SECAF”). [District Court
Appendix,
Doc.11-1,
PageID#327;
Doc.11-2,
PageID#328-329.] The DAF implemented a process for
handling religious accommodation requests to the
Vaccine Mandate, which included a process for
determining sincerity of religious beliefs. 2
1F
See Air Force Instruction 52-201, https://static.epublishing.af.mil/production/1/af_hc/publication/dafi52201/dafi52-201.pdf (last accessed 8/22/2022); Department of
Defense
Instruction
1300.17,
https://www.esd.
whs.mil/Portals/54/Documents/DD/issuances/dodi/130017p.pdf
(last accessed 8/22/2022); https://www.af.mil/News/ArticleDisplay/Article/2882742/daf-processes-religious2
5
Each of the eighteen original Plaintiffs
underwent this process in pursuit of a temporary
religious exemption to the Vaccine Mandate. All
timely submitted their religious accommodation
requests, and all had a DAF Chaplain confirm the
sincerity of their beliefs and the substantial burdening
of those beliefs by the Vaccine Mandate. [Compl.,
Doc.1, PageID#1-22; Appendix, Doc.11-1 through 1121, PageID#324-573; Declarations of Plaintiffs,
Doc.30-3 through 20, PageID#2091-2149.] All then
received initial denials and took appeals, with all but
four Plaintiffs receiving denials by the Surgeon
General of their final appeal (Plaintiffs Anderson,
Leiby, Norris and Ruyle were still awaiting a decision
on final appeal when the Preliminary Injunction was
entered). [Appendix, Doc.11-1 through 11-21,
PageID#324-573; Doc.19-1, PageID#943-947; Notice,
Doc.38-1 through 38-6, PageID#2631-2665; Notice,
Doc.60-1, PageID#4281-4359.]
After denial of their final appeals, every DAF
member was subjected to an order from his or her
commander to vaccinate or else. The order stated:
“Failure to comply with this lawful order may result
in administrative and/or punitive action for Failing to
Obey an Order under Article 92, Uniform Code of
Military Justice.” [Doster Dec., Doc. 19-1,
PageID#943-947.]
accommodations-requests/ (last accessed 8/22/2022). The Court
can take judicial notice of Government websites. TwumasiAnkrah v. Checkr, Inc., 954 F.3d 938, 947 n.3 (6th Cir. 2020).
6
Based on statistics it published on March 28,
2022, the DAF, as of that date, had granted 1,102
medical exemptions and 1,407 administrative
exemptions to the Vaccine Mandate. 3 As of that same
date, the DAF had only granted 25 religious
accommodations and had denied 6,143 (a 99.6%
disapproval rate). 4 Id. Not one single religious
exemption had been granted without that member
also being eligible for an administrative exemption
(i.e., being at the end of his or her term of service).
[Dec. Wiest, Doc.30-2, PageID#2084-2090, with
transcript
attached;
Dec.
Wiest,
Doc.74-2,
PageID#4527.]
2F
3F
All this evidence simply reconfirmed Plaintiffs’
verified complaint, which pled that the DAF adopted
a de facto systemic policy to deny religious exemption
requests other than for members at the end of their
term of service, while granting thousands of medical
and administrative exemptions. [Ver. Compl. ¶¶ 5152, 54, Doc.1, PageID#13-14.]
Respondents’ own witnesses and documents
provided the proof of the DAF’s systemic religious
https://www.af.mil/News/Article-Display/Article/2959594/dafcovid-19-statistics-march-2022/ (last accessed 9/17/2022).
3
4 The Government cited data from July 2022, which was after
the District Court entered its relief in this case, noting 135
religious accommodations were granted, all of which were within
the end-of-service exception. Even with these 135 approvals,
there was a 98.7% disapproval rate.
7
discrimination. For instance, Colonel James Poel’s
testimony documented the systemic denial of religious
exemption requests due to a stated goal of
accommodating even more medical exemptions. [Dec.
Poel,
Doc.25-17
¶7,
PageID#1430-1450.]
Consequently, the DAF treated medical exemptions as
a protected class at the expense of an actual protected
class. Id. Just as damning to Respondents’ claims,
Colonel Poel also admitted that “both natural and
vaccine immunity decrease the risk of infection,” and
that previous infection likely provides thirteen times
greater protection against reinfection or breakthrough
infection compared to vaccination alone. Id. ¶23 In
short, the DAF’s own evidence established that there
was no compelling need to force vaccination on those
with natural immunity (at a time when the CDC had
advised that over 95% of Americans had immunity to
COVID-19).
Further demonstrating systemic religious
discrimination, Colonel Artemio Chapa testified that
medical exemptions were granted for various
conditions, including pregnancy, adverse reactions,
allergies, and the like, yet the DAF granted almost no
religious accommodation requests, and the few they
did grant were no different than those granted for
medical or administrative reasons alone. [Doc.25-12,
PageID#1395-1403.] For instance, the DAF granted a
“medical exemption for allergic reactions to the
vaccine or components of the vaccine” to allow time for
a new vaccine to become available that would not
present these same risks, yet it was not willing to
8
similarly allow time for a morally unobjectionable
COVID-19 vaccine to become available. Id.
Significantly, DAF policy allowed members who
received medical exemptions to be considered
medically fit for duty despite their unvaccinated
status; yet those very few “lucky” members who
received religious exemptions at the end of their
careers, and the thousands of members either denied
or still waiting for religious exemptions, were
determined by the DAF to be unfit for duty. Id. ¶7.
Further, those receiving medical exemptions would
not necessarily lose their eligibility for deployment
because such determinations were made on a case-bycase basis; yet every member with a religious
exemption request was deemed automatically unfit for
deployment. Id. ¶14.
Like
medical
exemptions,
blanket
administrative exemptions were granted for a variety
of reasons. Id. ¶¶17-18. For example, administrative
exemptions were granted to any member who was
within six months of retirement. Given average terms
of service, an estimated five percent of the entire DAF
(which consists of the more senior and experienced
members) were eligible for this exemption. Yet, while
the DAF willingly accommodated approximately five
percent of its members, it refused to accommodate the
less than two percent of its members that it confirmed
as having sincerely held religious beliefs against
vaccination, claiming it was unable to accommodate
those members.
9
The case of Major Andrea Corvi [Doc.53-1,
PageID#3762-3789] brought Respondents’ unlawful
discriminatory practices into sharp focus. The DAF
granted Major Corvi a temporary medical exemption
for pregnancy. During her pregnancy and medical
exemption, she kept her same job duties, assignments,
and work interactions, including not in any way being
limited in ongoing interactions with the over 75
members in her squadron. Id. However, after she
delivered her child, and despite Respondents having
confirmed the sincerity of her religious beliefs and the
Vaccine Mandate’s substantial burden on those
beliefs, Respondents then denied her request for a
temporary religious exemption after her pregnancy
concluded. Id. The DAF admittedly was able to and did
accommodate Major Corvi during her pregnancy, but
it thereafter refused to temporarily continue that
accommodation for her well-founded religious beliefs.
This evidence was consistent with other record
evidence from Respondents confirming a blanket
policy by the DAF of granting medical exemptions for
pregnant members—regardless of duty station, job
assignment, or any other individual factor—despite
the recommendation by the CDC for pregnant
members to be vaccinated. [Dec. Cox, Doc.74-1,
PageID#4519-4526.]
The DAF ordered its commanders to actively
enforce the Vaccine Mandate. On December 7, 2021,
Secretary Kendall issued a Memorandum to the DAF
which stated, in pertinent part:
10
Commanders
will
take
appropriate
administrative
and
disciplinary
actions
consistent with federal law and Department of
the Air Force (OAF) policy in addressing service
members who refuse to obey a lawful order to
receive the COVID-19 vaccine and do not have
a pending separation or retirement, or medical,
religious or administrative exemption. Refusal
to comply with the vaccination mandate
without an exemption will result in the member
being subject to initiation of administrative
discharge proceedings.
[Doc.25-8,
added).]
PageID#1130-1135
(emphasis
B. Procedural Background
A two-count Complaint was filed February 16,
2022, seeking relief under RFRA and the First
Amendment. [Ver. Compl., Doc. 1, PageID#22]. The
Complaint noted imminent transfer of reservists from
duty to no-pay, no-retirement point status. Id. ¶47. It
also sought broad injunctive relief to “remedy the
violations at issue,” id. ¶59, and to “halt the ongoing
violations of law,” id. ¶70.
Plaintiffs sought preliminary injunctive relief on
February 22, 2022. [Motion, Doc. 13, at PageID#578599.] Their motion for injunctive relief included a
specific request, including in tendered orders, relating
11
to the loss of pay and points, specifically for SRA Dills
and SMSgt Schuldes, and sought to prevent the
ongoing loss of such pay and points. [Motion, Doc. 13,
at PageID#579, 584.]
A proposed order was tendered with that, which
requested the following relief:
To the extent Defendants have taken punitive
action against any airman from September 1,
2021 to the present, including but not limited to
the named Plaintiffs, including discharges, both
punitive or administrative, against any airmen
who submitted a religious accommodation request
from Defendants’ vaccination requirements, and
to whom the Defendants confirmed (or did not
dispute) the sincerity of the belief at issue, to
provide full and complete relief to such
persons, including restoration to active duty
(or active reserve duty, as the case may be),
record expungement, and restoration of pay
and allowances.
Id. at Doc. 13-6, PageID#814-816 (emphasis added).
Respondents opposed the requested injunctive relief
and argued:
Second, Plaintiffs appear to allege that
involuntary reassignment to the Individual Ready
Reserve and loss of retirement constitutes
irreparable harm. See Pls.’ Mem. 2, 4, Doc. No. 13,
12
PageID 579, 584. But any such contention is
meritless, as military administrative and
disciplinary actions, including separation, are not
irreparable injuries because the service member
could later be reinstated and provided back
pay if he prevailed on his claim. See, e.g.,
Hartikka v. United States, 754 F.2d 1516, 1518
(9th Cir. 1985); Chilcott v. Orr, 747 F.2d 29, 34
(1st Cir. 1984); Guitard v. U.S. Sec’y of Navy, 967
F.2d 737, 742 (2d Cir. 1992); Church, 2021 WL
5179215, at *17.
[Opposition to PI, Doc. 25, PageID#1025 (emphasis
added).]
On March 25, 2022, the District Court held an
evidentiary hearing in this matter. [Tr., Doc.45, 48,
PageID#3064-3101, 3206-3348.] Certain Plaintiffs
testified including SRA Dills.
SRA Dills testified that he is a member of the Air
Force reserves, stationed at Wright Patterson Air
Force Base in Dayton, Ohio. [Transcript, Doc. 48 at
PageID#3253-3254.]
He then testified how the DAF punished him for his
non-compliance:
Q. And what happened in January of this year?
A. We -- they gave us a -- an LOR, a Letter of
Reprimand, and then you had a chance to appeal
13
it. And then basically we were told that we were
now on what’s called no point, no pay status for
six months, so I believe that ends in July, and
then right after that we’re going to be put on IRR,
which is Individual Ready Reserve, for the
remainder of our contract. So basically it’s a way
of kicking us out without kicking us out.
[Id. at PageID#3262-3263].
In March of 2022, a preliminary injunction issued
in favor of the named Plaintiffs, but this relief did not
extend to the requested restoration of reservist pay
and points. Doster v. Kendall, 596 F. Supp. 3d 995
(S.D. Ohio 2022). This is because Respondents argued,
and the district court accepted, that Plaintiffs could
receive restitution of back pay and back retirement
points in a subsequent final judgment and, thus, that
sort of harm, although recoverable, was not
irreparable. Doster, 596 F. Supp. 3d 995, 1019.
Congress ends the Vaccine Mandate, and the
Department of Defense and the DAF act to
remedy most, but not all, of the harm.
In December of 2022, Congress enacted legislation
directing the Department of Defense, and its
component branches, to repeal the Vaccine Mandate.
In January and February of 2023, the Government
took steps to remedy most adverse actions from service
member’s files, such as removing reprimands, but the
Government declined to fully remedy its illegal
14
discrimination in total or to remove its effects root and
branch, including refusing to restore SRA Dills’ and
SMSgt. Schuldes’ (and similarly situated class
members’) (i) records to reflect continued reserve
service from January to July 2022, (ii) lost retirement
points, and (iii) lost back pay.
On January 30, 2024, the district court ordered, via a
notation order, simultaneous briefing by the parties as
follows: “The parties are ORDERED to provide this
Court with supplemental briefing concerning the
mootness of this case in its entirety following the
Supreme Court’s order (Doc. 121). All briefing shall be
submitted by February 9, 2024.” Notably, the district
court did not permit Plaintiffs to respond to the
Government’s filing.
In arguing that the case was moot, the
Government pulled a bait and switch, taking a
contrary position from the position it took in the
preliminary injunction proceedings, now arguing that
the district court was without authority to restore lost
pay and lost points. [Memo, Doc. 124, PageID#59515958.]
Plaintiffs demonstrated that neither the named
Plaintiffs, nor the class, were made whole—and that
the relief they still sought, consisting of lost pay and
lost points, had not been restored.
Plaintiffs
substantiated the lost pay and lost points allegations
through declarations of SRA Dills and SMSgt
15
Schuldes. [Memo and Declarations in Support, Doc.
125, PageID#5966-5984.]
The Government denied SMSgt. Schuldes
$3,436.64 in lost drill pay (i.e., back pay) for the drill
weekends he missed from January to August 2022.
[Dec. Schuldes, Doc. 125-1, PageID#5980-5981.]
SMSgt. Schuldes has never had that lost drill pay
restored to him and, without an order of this Court,
will never have that lost drill pay restored to him. Id.
The Government also denied SRA Dills $2,972.56
in lost drill pay (i.e., back pay) for the drill weekends
he missed from January to September 2022. [Dec.
Dills, Doc. 125-2, PageID#5982-5984.] SRA Dills has
never had that lost drill pay restored to him and,
without an order of this Court, will never have that
lost drill pay restored to him. Id.
The Government also refused to restore SRA Dills’
and SMSgt. Schuldes’ lost thirty-two retirement
points, effectively causing them to lose credit for
participation in reserve status, which is calculated
towards retirement. [Dec. Schuldes, Doc. 125-1,
PageID#5980-5981;
Dec.
Dills,
Doc.
125-2,
PageID#5982-5984.] Even worse, SMSgt. Schuldes
was denied a “good year” of service counting towards
retirement, which will require him to serve an
additional year to be eligible to retire. [Dec. Schuldes,
Doc. 125-1, PageID#5980-5981.]
16
These lost reserve retirement points are
detrimental in other ways as a member’s reserve
retirement points (to include prior active-duty periods)
are used to calculate retirement pay. [Dec. Schuldes,
Doc. 125-1, PageID#5980-5981; Dec. Dills, Doc. 125-2,
PageID#5982-5984.] As a result, unless corrected by
order of the Court, Reservist Plaintiffs ultimately will
draw less retirement pay when they retire because of
the illegal discipline/actions taken against them for
not compromising their sincere religious beliefs
against taking the COVID-19 vaccine. Id.
On March 18, 2024, the district court held that the
Government’s failure to remedy this undisputed harm
did not matter, that the court was without authority
to afford this requested relief, and that the case was
moot. [Order, Doc. 127, PageID#5987-5998.]
On May 12, 2025, the Sixth Circuit entered an
opinion that is the subject of this petition for a writ of
certiorari and which is reported at Doster v. Kendall,
2025 U.S. App. LEXIS 11679 (6th Cir. 2025).
REASONS FOR GRANTING THE PETITION
I. This Court should grant certiorari because
the decisions below undermine RFRA and
conflict with binding precedent from this
Court
The “heavy burden of persua[ding]” the Court that
this matter is moot lies with the Government, not with
Plaintiffs. Friends of the Earth, Inc. v. Laidlaw Envtl.
17
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting
United States v. Concentrated Phosphate Export Assn.,
393 U.S. 199, 203 (1968)). And “a case becomes moot
only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.”
Chafin v. Chafin, 568 U.S. 165, 172 (2013) (emphasis
added) (citation modified). “As long as the parties have
a concrete interest, however small, in the outcome of
the litigation, the case is not moot.” Id. (emphasis
added). Thus, if there is any additional relief that
can be awarded, however small, a case is not moot.
See Knox v. SEIU, Local 1000, 567 U.S. 298, 307-308
(2012); Chafin, 568 U.S. 165, 172. (emphasis added).
It is well-settled that new legislation does not ipso
facto eliminate the discriminatory intent behind older
legislation, nor does it moot a dispute regarding the
violation of law. See Hunter v. Underwood, 471 U.S.
222, 232-33 (1985) (holding that actions taken in the
succeeding 80 years to change the terms of a law did
not eliminate its original discriminatory intent); Miss.
State Chapter, Operation Push, Inc. v. Mabus, 932
F.2d 400, 408-09 (5th Cir. 1991); N.C. State Conference
of NAACP v. McCrory, 831 F.3d 204, 240 (4th Cir.
2016).
Under the “collateral consequences” exception
to mootness, even when the plaintiff’s primary injury
has ceased, the case is not moot if there remains other
harm the court is capable of remedying. See Sibron v.
New York, 392 U.S. 40, 53-59 (1968). And a continuing
18
collateral consequence is one that provides the
plaintiff with a “concrete interest” in the case and for
which “effective relief” is available. Firefighters Local
Union No. 1784 v. Stotts, 467 U.S. 561, 571 (1984).
Only the act of fully remedying harm can moot a
case, and it is undisputed that full relief has not
occurred here. See Wooten v. Housing Authority of
Dallas, 723 F.2d 390, 392 (5th Cir. 1983) (explaining
that only receipt of “all of the relief sought” will moot
the case); see also Chen v. Allstate Ins. Co., 819 F.3d
1136, 1138 (9th Cir. 2016) (noting that a claim
becomes moot when a plaintiff actually receives
complete relief).
Petitioner SRA Dills is in the Air Force serving as
an active reservist. [Dills Declaration, Doc. 125-2,
PageID# 5982]. Due to his refusal to take the COVID19 vaccine, he was transferred to a no-points, no-pay
status. (Id.) From January through September of
2022, he did not receive $2,972.56 in drill pay nor did
he receive thirty-two reserve retirement points. [Id.,
at PageID# 5983].
Petitioner SMSgt Schuldes lost $3,436.64 in drill
pay and thirty-two retirement points for the same
reason. [Id., at PageID#5981]. These lost points and
backpay can be remedied by equitable relief which was
sought by Petitioners.
In Schelske v. Austin, a separated soldier who
applied for and was denied a religious accommodation
19
to the COVID-19 vaccine mandate sued and sought
equitable relief to include reinstatement and back pay.
2023 U.S. Dist. LEXIS 163101 (N.D. Tex. 2023). After
the Vaccine Mandate was repealed, and despite
corrective actions taken by the Secretaries of the Army
and Defense materially like those taken by the
Secretary of the Air Force here, the soldier still did not
receive the equitable relief he sought.
In addressing the mootness issue in that case, the
Schelske Court determined that claims for back pay
and retirement points were appropriate merely to
restore that plaintiff to the position he held prior to
the Army defendants’ illegal actions, thus those claims
were equitable and justiciable. Id. at *105-*111. This
was true regardless of the fact the plaintiff in Schelske
was not on any duty status after being involuntary
separated, and he did not perform any military duties
after his involuntary separation. Schelske is on all
fours with this case.
The district court and Sixth Circuit chose not to
follow precedent that classifies restorative relief—like
restoration of back pay or retirement points—as
equitable, not legal, relief. Kolstad v. ADA, 527 U.S.
526 (1999); West v. Gibson, 527 U.S. 212 (1999). Yet,
this Court held, in Tanzin v. Tanvir, 592 U.S. 43, 48
(2020), that the “appropriate relief” under RFRA was
“open ended.” This Court also held that “parties suing
under RFRA must have at least the same avenues for
relief against officials that they would have had before
Smith” under § 1983. Of course, this Court previously
20
held that such relief is equitable relief and is available
in § 1983 matters. See Rankin v. McPherson, 483 U.S.
378, 382 (1987) (explaining back pay and related relief
is equitable under 1983).
As noted, it is undisputed this matter involves
claims for back pay and retirement points. Those
claims are justiciable as a matter of equitable relief
and are within the authority of federal courts to
award. See U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336
(5th Cir. 2021); Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 128 (2014); Schelske
v. Austin, 2023 U.S. Dist. LEXIS 163101 (N.D. Tex.
2023).
Once again, courts, including this Court, hold
that relief, such as the restoration of lost drill pay and
lost retirement points withheld here in 2022, is purely
restitutionary in nature. Id. (citing Borst v. Chevron
Corp., 36 F.3d 1308, 1324 (5th Cir. 1994) and
Chauffeurs, Teamsters & Helpers, Loc. No. 391 v.
Terry, 494 U.S. 558, 570 (1990)). In other words, the
“equitable” remedy is limited to “restoring the status
quo and ordering the return of that which rightfully
belongs” to a plaintiff. Id. (citing Tull v. United States,
481 U.S. 412, 424 (1987)); Porter v. Warner Holding
Co., 328 U.S. 395, 402 (1946). See also Harkless v.
Sweeny Independent School Dist., 427 F.2d 319 (5th
Cir. 1979).
Because back pay is equitable rather than legal
relief, this Court can order such relief. See Kolstad v.
21
ADA, 527 U.S. 526 (1999); West v. Gibson, 527 U.S.
212, 119 S. Ct. 1906 (1999); Schelske, 2023 U.S. Dist.
LEXIS 163101.
And, the equitable remedy of restoration of back
pay and retirement points runs to the official capacity
of Respondents who improperly placed all Reservist
Plaintiffs in a no pay and no points status, and it is
entirely within the authority of this Court to grant.
See Crugher v. Prelesnik, 761 F.3d 610 (6th Cir. 2014);
Cimerman v. Cook, 561 Fed. App’x 447 (6th Cir. 2014);
Turker v. Ohio Dep’t of Rehaabilitation & Corrections,
157 F.3d 453, 459 (6th Cir. 1998) (“reinstatement [is]
… prospective equitable relief”).
“[W]here federally protected rights have been
invaded, it has been the rule from the beginning that
courts will be alert to adjust their remedies so as to
grant the necessary relief.” Bell v. Hood, 327 U.S. 678,
684 (1946). And back pay is an equitable remedy
distinct from damages. See Albemarle Co. v. Moody,
422 U.S. 405 (1975); Howe v. City of Akron, 801 F.3d
718, 744 (6th Cir. 2015) (explaining that back pay is
an equitable remedy, part and parcel with eradicating
the effects of discrimination); CONRAIL v. Darrone,
465 U.S. 624 (1984) (back pay is appropriately
awarded as an equitable remedy under Title VI); Tull,
481 U.S. 412, 424 (1987) (restitution “traditionally
considered an equitable remedy”); Mertens v. Hewitt
Assocs., 508 U.S. 248, 255 (1993) (restitution is a
“remedy traditionally viewed as ‘equitable’”);
Teamsters v. Terry, 494 U.S. 558, 570 (1990) (“We have
22
characterized [money] damages as equitable where
they are restitutionary.”); United States v. Burke, 504
U.S. 229 (1992) (back pay is equitable relief, not
money damages).
Regardless, even if back pay cannot be awarded
(as noted above, it can), retirement credit and points
plainly can be awarded as a matter of equity because
RFRA affords “appropriate relief.” 42 U.S.C. § 2000bb1(c). Retirement credit has long been determined by
courts to be equitable relief. See Downie v.
Independent Drivers Ass’n Pension Plan, 934 F.2d
1168 (10th Cir. 1991); Oppenheim v. Campbell, 571
F.2d 660, 661-63 (D.C. Cir. 1978) (retirement credit is
equitable relief); CIGNA Corp. v. Amara, 563 U.S. 421
(2011) (explaining wide-ranging equitable relief
available for similar “appropriate” remedy statute).
And this equitable relief, under the constructive
service doctrine, should “return successful plaintiffs to
the position that they would have occupied ‘but for’
their illegal release from duty.” Barnick v. United
States, 591 F.3d 1372, 1379 (Fed. Cir. 2010) (quoting
Dilley v. Alexander, 627 F.2d 407, 413, 200 U.S. App.
D.C. 354 (D.C. Cir. 1980)).
Moreover, “the court’s power to grant injunctive
relief survives discontinuance of the illegal conduct.”
United States v. W. T. Grant Co., 345 U.S. 629, 633
(1953).
23
In response to the district court’s request for
briefing on mootness, and despite not raising it in
their Answer and thus waiving the defense,
Respondents argued that the requested equitable
relief was foreclosed due to sovereign immunity.
Respondents are wrong as a matter of law. The Tucker
Act, 28 U.S.C. § 1346(a)(2), applies here because
Plaintiffs’ back pay claims are, individually, all under
the $10,000 threshold, thus conferring jurisdiction on
the district court. In a like manner, the Reservists Pay
Mandating Statute, 37 U.S.C. § 206, also applies and
conferred jurisdiction on the district court.
As the court in Schelske explained, Congress
waived sovereign immunity for equitable claims,
which extend to back pay. See Schelske, 2023 U.S.
Dist. LEXIS 163101 at *105-*106 (citing Borst v.
Chevron Corp., 36 F.3d 1308, 1324 (5th Cir. 1994),
Chauffeurs, Teamsters & Helpers, Loc. No. 391 v.
Terry, 494 U.S. 558, 570 (1990), and Tull v. United
States, 481 U.S. 412, 424 (1987)). The Schelske Court
also explained that, because of the nature of a RFRA
claim, with “appropriate relief,” equitable relief could
be had that included back pay. 2023 U.S. Dist. LEXIS
163101. So too, here.
Other federal courts are in accord that sovereign
immunity does not apply to claims for back pay,
whether under RFRA or any other applicable
statutory scheme, because the nature of back pay
claims is equitable relief. See Hubbard v.
Administrator, EPA, 982 F.2d 531, 547-48 (D.C. Cir.
24
1992). The Hubbard Court explained that where a
plaintiff is illegally denied a job or its emoluments,
restitutionary relief applies and thus an “award of
instatement and back pay gives [plaintiff] the precise
thing to which he was entitled and therefore
constitutes specific restitution.” Id. “Although such an
award involves money, that alone does not take it
outside equity.” Id.
Hubbard,
in
turn,
cited
Bowen
v.
Massachusetts, 487 U.S. 879, 893 (1998), for the
proposition that, in certain circumstances, sovereign
immunity does not bar claims that involve money. In
Bowen, this Court explained that it was “an equitable
action for specific relief” when a government employee
sought “an order providing for the reinstatement of an
employee with backpay, or for ‘the recovery of specific
property or monies, ejectment from land, or injunction
either directing or restraining the defendant officer’s
actions.’” Id; see also Ulmet v. United States, 888 F.2d
1028, 1030-31 (4th Cir. 1989) (finding jurisdiction in
the district court to award back pay, although
sanctioning its decision to defer to the Claims Court);
DeVargas v. Mason & Hanger-Silas Mason Co., 911
F.2d 1377, 1381 (10th Cir. 1990) (dicta), cert. denied,
111 S. Ct. 799 (1991); Gleason v. Malcom, 718 F.2d
1044, 1048 (11th Cir. 1983) (in rejecting a First
Amendment damages claim, the court wrote: “As a
federal employee, she could have sought equitable
relief, i.e., reinstatement and back pay, pursuant to
the Administrative Procedure Act”); Nixon v. United
States, 290 U.S. App. D.C. 420, 938 F.2d 239, 251 n.4
25
(D.C. Cir. 1991). Other Courts are in agreement. See
Wenrich v. Empowered Mgmt. Sols. LLC, 2019 U.S.
Dist. LEXIS 130041 (D. Colo. 2019) (explaining back
pay claims were equitable in claim against Army, and
not barred by sovereign immunity).
The district court erroneously determined that
it could not reach the issues here because “retroactive”
equitable relief was not sought in the Complaint.
[Order, Doc. 127, PageID#5991-5994]. For SRA Dills
and SMSgt Schuldes, the Complaint unequivocally
stated that each faced imminent transfer to the
Individual Ready Reserve, loss of pay, and loss of
retirement benefits. [Ver. Compl., Doc. 1 ¶¶ 17, 20, 47;
PageID#5, 6, 12.] The Sixth Circuit affirmed on that
same erroneous basis.
Yet, the Complaint also sought broad injunctive
relief to “remedy the violations at issue,” id. ¶59, and
to “halt the ongoing violations of law,” id. ¶70. And as
noted above, the relief of reinstatement and
restoration of back pay and points is prospective
injunctive relief, not “retroactive” relief.
Once again, it is clear from the record that this
type of equitable relief was sought from the outset in
this matter, including by way of Plaintiffs’ preliminary
injunction motion, and the fact that it was
substantively addressed by Respondents in their
Opposition to Plaintiffs’ motion, thus constituting
judicial estoppel (see Part IV below). Without question,
Respondents explicitly argued that such relief was
26
available, though not in a preliminary injunction
order, but rather in a final remedy. [Motion, Doc. 13,
at PageID#579, 584; Opposition to PI, Doc. 25,
PageID#1025.]
Moreover, the district court and Sixth Circuit’s
erroneous legal conclusion fundamentally misapplies
the law and ignores the significance of notice pleading.
Federal Rule Civil Procedure 54(c) states that, except
in default judgment cases, every “final judgment
should grant the relief to which each party is entitled,
even if the party has not demanded that relief in its
pleadings.” Fed. R. Civ. P. 54(c); see also 10 C. Wright,
A. Miller, & M. Kane, Federal Practice & Procedure
§§2662, 2664 (4th ed. 2014) (Wright & Miller). Courts
have refused to award relief outside the pleadings only
when that would somehow prejudice the defendant,
such as when the defendant did not have an
opportunity to contest the basis for that relief. See
Albemarle Paper Co. v. Moody, 422 U.S. 405, 424
(1975); United States v. Marin, 651 F.2d 24, 30 (1st
Cir. 1981); 10 Wright & Miller §2664. Otherwise, “a
party should experience little difficulty in securing a
remedy other than that demanded in the pleadings as
long as the party shows a right to it.” Id., §2662; Whole
Woman’s Health v. Hellerstedt, 579 U.S. 582, 584
(2016).
In fact, this rule has been invoked by the
Government to permit relief that was not explicitly
plead, namely restitutionary relief, the very relief for
which Plaintiffs pleaded and continue to seek here.
27
See United States v. Universal Mgmt. Servs., 191 F.3d
750, 759 n.7 (6th Cir. 1999).
The decisions below have the effect of stripping
RFRA of an incredibly important equitable relief—
restitutionary relief—such as reinstatement, back
pay, or other remedial relief. They run contrary to the
text of RFRA and to the historical tradition in place
when RFRA was passed. This Court should grant
certiorari.
II. Judicial Estoppel forecloses Respondents’
arguments
against
back
pay
and
restitutionary relief
This case was dismissed, and dismissal was
affirmed, under Respondent’s claim that equitable
back pay and restitutionary relief was unavailable to
Petitioners. However, Respondents previously
argued—in opposing more wide-ranging preliminary
injunctive relief—that back pay and restitutionary
relief would be a remedy that could be awarded in final
injunctive relief. And the district court withheld such
relief on that very basis.
“Where a party assumes a certain position in a
legal proceeding, and succeeds in maintaining that
position, he may not thereafter, simply because his
interests have changed, assume a contrary position,
especially if it be to the prejudice of the party who has
acquiesced in the position formerly taken by him.”
Davis v. Wakelee, 156 U.S. 680, 689 (1895). This rule,
28
known as judicial estoppel, “generally prevents a
party from prevailing in one phase of a case on an
argument and then relying on a contradictory
argument to prevail in another phase.” Pegram v.
Herdrich, 530 U.S. 211, 227 n. 8 (2000); see 18 Moore’s
Federal Practice § 134.30, p. 134-62 (3d ed. 2000)
(“The doctrine of judicial estoppel prevents a party
from asserting a claim in a legal proceeding that is
inconsistent with a claim taken by that party in a
previous proceeding”); 18 C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure § 4477, p. 782
(1981) (“absent any good explanation, a party should
not be allowed to gain an advantage by litigation on
one theory, and then seek an inconsistent advantage
by pursuing an incompatible theory”); see also New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (“This
rule, known as judicial estoppel, ‘generally prevents a
party from prevailing in one phase of a case on an
argument and then relying on a contradictory
argument to prevail in another phase.’” (quoting
Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000))).
The factors this Court applies to assertions of
judicial estoppel are: (i) whether a party’s later
position is “clearly inconsistent” with its earlier
position;
(ii)
whether
a “party has succeeded in persuading a court to accept
that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later
proceeding would create ‘the perception that either the
first or the second court was misled’”; and (iii)
“whether the party seeking to assert an inconsistent
29
position would derive an unfair advantage or impose
an unfair detriment on the opposing party if not
estopped.” Maine, 532 U.S. 742, 750-51.
Every single one of those elements is met here.
Respondents,
in
opposing
preliminary
injunctive relief, argued below as follows:
Second, Plaintiffs appear to allege that
involuntary
reassignment
to
the
Individual Ready Reserve and loss of
retirement constitutes irreparable harm.
See Pls.’ Mem. 2, 4, Doc. No. 13, PageID 579,
584. But any such contention is meritless, as
military administrative and disciplinary
actions, including separation, are not
irreparable injuries because the service
member could later be reinstated and
provided back pay if he prevailed on his
claim. See, e.g., Hartikka v. United States, 754
F.2d 1516, 1518 (9th Cir. 1985); Chilcott v. Orr,
747 F.2d 29, 34 (1st Cir. 1984); Guitard v. U.S.
Sec’y of Navy, 967 F.2d 737, 742 (2d Cir. 1992);
Church, 2021 WL 5179215, at *17.
[See Govt. Opposition to Preliminary
Injunction, at Doc. 25, PageID#1025) (emphasis
added).]
Of course, if such final relief were not in fact
available, as the Government later argued (and the
30
district court and Sixth Circuit ultimately held), then
the transfers to no-pay, no-points status would
constitute irreparable harm as there would be no way
to remedy such harm, and preliminary injunctive
relief should have appropriately extended to halt such
actions. See Ala. Ass’n of Realtors v. HHS, 594 U.S.
758, 765 (2021).
In March of 2022, a preliminary injunction then
issued in favor of Plaintiffs that prevented any further
adverse actions by Respondents. Doster v. Kendall,
596 F. Supp. 3d 995 (S.D. Ohio 2022). However,
because Respondents argued, and the district court
accepted, that Plaintiffs were able to receive
restitution in the form of back pay and back
retirement points in a final judgment, and thus
those harms were not irreparable, the preliminary
injunction relief did not include restoration of lost pay
and lost points. Id. at 1019-20; Govt. [Opposition to
Preliminary Injunction, at Doc. 25, PageID#1025.]
And as Maine makes clear, estoppel is not
foreclosed just because the Government is one of the
parties. Id. at 755. When dealing with estoppel against
the Government, courts must ask whether the law
itself is being enjoined, as there are public policy
reasons not to enjoin enforcement of the law. Id. Here,
of course, we have a case involving Government
violations of the law, and ultimately the Government
engaging in Janus-faced arguments that suited it at
the time, but resulting in depriving service-members
31
of important statutory relief and protections enacted
by Congress in RFRA.
III. This case is important and is an ideal vehicle
Declining to grant review here results in
traditional restorative equitable relief being rendered
unavailable to claimants under RFRA—at least in the
Sixth Circuit, where the panel below published the
companion case. See Poffenbarger v. Kendall, 137
F.4th 563 (6th Cir. 2025). This Court should not wait
for other circuits to follow that erroneous path.
Correctly interpreting matters pertaining to
religious liberty “is a question of great importance.”
Fulton v. City of Philadelphia, 593 U.S. 522, 553
(2021) (Alito, J., concurring); see also Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 730 (2014) (“HHS’s
view that RFRA can never require the Government to
spend even a small amount reflects a judgment about
the importance of religious liberty that was not shared
by the Congress that enacted that law.”). Granting
review here is thus critical to maintaining the full
protection afforded under RFRA.
The ongoing deprivation of back pay and
retirement points to thousands of conscience bound
military reservists, after a pattern of illegal religious
discrimination, still needs to be remedied. This Court
is Petitioners’ last hope. And here, the Government
comes to this Court with unclean hands, having
succeeded in a bait-and-switch maneuver with respect
32
to preliminary injunctive relief. Review is thus
warranted.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
AARON SIRI
ELIZABETH A. BREHM
WENDY COX
SIRI & GLIMSTAD LLP
745 Fifth Ave.
Suite 500
New York, NY 10151
CHRISTOPHER D. WIEST
CHRIS WIEST ATTORNEY AT
LAW, PLLC
50 East Rivercenter Blvd.
Suite 1280
Covington, KY 41011
OCTOBER 9, 2025
THOMAS B. BRUNS
Counsel of Record
BRUNS CONNELL VOLLMAR
& ARMSTRONG
4555 Lake Forrest Drive,
Suite 330
Cincinnati, OH 45202
Tel: 513/312-9890
tbruns@bcvalaw.com
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED MAY 12, 2025 . . . . . . . . 1a
APPENDIX B — JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED MAY 12, 2025 . . . . . . . . 6a
APPENDIX C — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
S OU T H ER N DI S T R IC T OF OH IO,
WESTERN DIVISION – CINCINNATI,
FILED MARCH 18, 2024 . . . . . . . . . . . . . . . . . . . . . 8a
APPENDIX D — JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE
S OU T H ER N DI S T R IC T OF OH IO,
WESTERN DIVISION – CINCINNATI,
FILED MARCH 18, 2024 . . . . . . . . . . . . . . . . . . . . 21a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT,
FILED MAY 12, 2025
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 24-3404
HUNTER DOSTER; JASON ANDERSON;
MCKENNA COLANTANIO; PAUL CLEMENT;
JOE DILLS; BENJAMIN LEIBY; BRETT MARTIN;
CONNOR MCCORMICK; HEIDI MOSHER;
PETER NORRIS; PATRICK POTTINGER; ALEX
RAMSPERGER; BENJAMIN RINALDI; DOUGLAS
RUYLE; CHRISTOPHER SCHULDES; EDWARD
STAPANON, III; ADAM THERIAULT; DANIEL
REINEKE, ON BEHALF OF THEMSELVES AND
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants,
v.
HON. FRANK KENDALL, III, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF THE AIR FORCE;
LT. GENERAL BRIAN S. ROBINSON, IN HIS
OFFICIAL CAPACITY AS COMMANDER, AIR
EDUCATION AND TRAINING COMMAND; LT.
GENERAL JOHN P. HEALY, IN HIS OFFICIAL
CAPACITY AS COMMANDER, AIR FORCE
RESERVE COMMAND; UNITED STATES OF
AMERICA; MAJOR GENERAL JOHN D. DEGOES,
IN HIS OFFICIAL CAPACITY AS SURGEON
GENERAL OF THE AIR FORCE; LT. GENERAL
MICHAEL E. CONLEY, IN HIS OFFICIAL
CAPACITY AS COMMANDER, AIR FORCE
SPECIAL OPERATIONS COMMAND,
Defendants-Appellees.
2a
Appendix A
Before: KETHLEDGE, BUSH, and MURPHY, Circuit
Judges.
KETHLEDGE, Circuit Judge. Eighteen members
of the United States Air Force sued the government
alleging that the Air Force’s requirement to take the
COVID-19 vaccine violated the Religious Freedom
Restoration Act (RFRA) and the First Amendment. The
district court dismissed the action as moot after the Air
Force rescinded the requirement. We affirm.
The FDA approved the first COVID-19 vaccine in
August 2021. At President Biden’s request, the Secretary
of Defense directed all Armed Forces to take the vaccine.
Frank Kendall, the Secretary of the Air Force, ordered
active-duty members of the Air Force to be vaccinated by
November 2, 2021, and reservists by December 2, 2021.
In a memorandum attached to the order, Kendall outlined
the steps to request medical, administrative, and religious
exemptions. The named plaintiffs—14 active-duty
members of the Air Force and four active reservists—all
requested religious exemptions to the mandate, and the
Air Force granted none of their requests.
In February 2022, the plaintiffs filed a class-action
complaint for declaratory and injunctive relief against
the United States, Secretary Kendall, and four other
officers of the Air Force, all in their official capacities.
The plaintiffs asked the court to enjoin the defendants
from enforcing the mandate against the plaintiffs or
others similarly situated; to direct the defendants to grant
the plaintiffs’ exemption requests; and to declare that
3a
Appendix A
the mandate illegally burdened the plaintiffs’ religious
exercise in violation of RFRA and the First Amendment.
They also asked the court to certify the class and to award
costs, including attorney fees, and other appropriate relief.
They did not request damages, back pay, or retirement
points for missed drills.
The district court certified the class and issued
preliminary injunctions, enjoining the defendants from,
among other things, disciplining or separating class
members or placing active reservists on “no-points, nopay status” for refusing to take the COVID-19 vaccine
“due to their sincerely held religious beliefs.” This court
affirmed those injunctions in November 2022. Doster v.
Kendall, 54 F.4th 398 (6th Cir. 2022).
Then, in December 2022, Congress enacted the James
M. Inhofe National Defense Authorization Act for Fiscal
Year 2023, which ordered the Secretary of Defense to
rescind the military’s COVID-19 vaccine mandate. Pub. L.
No. 117-263, § 525. The Secretary rescinded the mandate
on January 10, 2023, and the Air Force soon did the same.
The defendants then filed a petition for a panel
rehearing and for rehearing en banc, requesting to vacate
the panel opinion and the preliminary injunctions, which
this court denied. Doster v. Kendall, 65 F.4th 792 (6th Cir.
2023) (order). Soon after, the defendants filed a petition
for certiorari in the U.S. Supreme Court and moved in the
district court to dismiss the entire case as moot because
the court could no longer grant any of the plaintiffs’
requested relief.
4a
Appendix A
In December 2023, the Supreme Court granted
certiorari, vacated the judgment, and remanded the case
to this court with instructions to direct the district court
to vacate its preliminary injunctions as moot. Kendall
v. Doster, 144 S. Ct. 481, 217 L. Ed. 2d 248 (2023) (citing
United States v. Munsingwear, Inc., 340 U.S. 36, 71 S. Ct.
104, 95 L. Ed. 36 (1950)). The district court then vacated
the preliminary injunctions and ordered supplemental
briefing on whether the entire case was moot. After
reviewing that briefing, the court granted the defendants’
renewed motion to dismiss the case. The plaintiffs now
appeal.
We review de novo a district court’s decision to dismiss
a case as moot. Hanrahan v. Mohr, 905 F.3d 947, 960 (6th
Cir. 2018). Article III, Section 2 of the U.S. Constitution
grants federal courts the “judicial Power” to adjudicate
only “Cases” or “Controversies.” If a court can no longer
grant any “effectual relief” to the plaintiff, there is no
longer a “true dispute” between the parties, and the case
becomes moot. Jarrett v. United States, 79 F.4th 675,
677-78 (6th Cir. 2023) (citation omitted). “The test for
mootness is whether the relief sought would, if granted,
make a difference to the legal interests of the parties.”
Hanrahan, 905 F.3d at 960 (citation omitted). A case is
moot, then, when a plaintiff has received all the relief he
sought. See Jarrett, 79 F.4th at 678.
The plaintiffs concede that Kendall’s recission of the
vaccine mandate “moots most of the case for many of the
named plaintiffs and much of the class.” But they argue
that two of the named plaintiffs, Joe Dills and Christopher
5a
Appendix A
Schuldes, still have a live case even after the Air Force
rescinded the mandate. Dills and Schuldes are active
reservists whom the Air Force placed on “no-points, nopay” status after they refused to take the vaccine. That
status meant they were no longer allowed to attend drill
weekends, where they would have earned drill pay and
retirement points. They asserted for the first time in
supplemental briefing on the mootness issue—two years
after they filed suit—that the court could award them
back pay and retirement points for the drill weekends the
reservists missed.
But the plaintiffs did not seek this relief in their
complaint. They asked the court to enjoin the defendants
from enforcing the vaccine mandate against them, to grant
their religious-exemption requests, and to declare that
the mandate violated RFRA and the First Amendment.
None of this relief would have any practical effect on the
plaintiffs’ rights now that the Air Force has rescinded the
mandate. Hence the case is moot.
The district court’s judgment is affirmed.
6a
B
APPENDIX BAppendix
— JUDGMENT
OF THE
UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT, FILED MAY 12, 2025
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 24-3404
HUNTER DOSTER; JASON ANDERSON;
MCKENNA COLANTANIO; PAUL CLEMENT;
JOE DILLS; BENJAMIN LEIBY; BRETT MARTIN;
CONNOR MCCORMICK; HEIDI MOSHER;
PETER NORRIS; PATRICK POTTINGER; ALEX
RAMSPERGER; BENJAMIN RINALDI; DOUGLAS
RUYLE; CHRISTOPHER SCHULDES; EDWARD
STAPANON, III; ADAM THERIAULT; DANIEL
REINEKE, ON BEHALF OF THEMSELVES AND
OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants,
v.
HON. FRANK KENDALL, III, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF THE AIR FORCE;
LT. GENERAL BRIAN S. ROBINSON, IN HIS
OFFICIAL CAPACITY AS COMMANDER, AIR
EDUCATION AND TRAINING COMMAND;
LT.GENERAL JOHN P. HEALY, IN HIS OFFICIAL
CAPACITY AS COMMANDER, AIR FORCE
RESERVE COMMAND; UNITED STATES OF
AMERICA; MAJOR GENERAL JOHN D. DEGOES,
IN HIS OFFICIAL CAPACITY AS SURGEON
GENERAL OF THE AIR FORCE; LT. GENERAL
MICHAEL E. CONLEY, IN HIS OFFICIAL
CAPACITY AS COMMANDER, AIR FORCE
SPECIAL OPERATIONS COMMAND,
Defendants-Appellees.
7a
Appendix B
Before: KETHLEDGE, BUSH, and MURPHY,
Circuit Judges.
JUDGMENT
On Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
THIS CAUSE was heard on the record from the
district court and was submitted on the briefs without
oral argument.
IN CONSIDERATION THEREOF, it is ORDERED
that the judgment of the district court is AFFIRMED.
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens
Kelly L. Stephens, Clerk
8a
C
APPENDIXAppendix
C — ORDER
OF THE
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF OHIO,
WESTERN DIVISION – CINCINNATI,
FILED MARCH 18, 2024
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION – CINCINNATI
Case No. 1:22-cv-84
Judge Matthew W. McFarland
HUNTER DOSTER, et al.,
Plaintiffs,
v.
HON. FRANK KENDALL, et al.,
Defendants.
ORDER GRANTING DEFENDANTS’ RENEWED
MOTION TO DISMISS (DOC. 111)
This matter is before the Court on Defendants’
Renewed Motion to Dismiss (Doc. 111). Plaintiffs filed a
Response in Opposition (Doc. 112), to which Defendants
filed a Reply in Support (Doc. 113). Both parties filed
supplemental briefing on this issue (see Docs. 124, 125)
pursuant to the Court’s order, so the matter is now ripe
for review. For the following reasons, the Court GRANTS
Defendants’ Renewed Motion to Dismiss.
9a
Appendix C
FACTS & PROCEDURAL BACKGROUND
On February 16, 2022, Plaintiffs filed a Class Action
Complaint for Declaratory Judgment and Injunctive
Relief. (See Compl., Doc 1.) The named Plaintiffs—18
servicemembers in the United States Air Force—alleged
that the Department of Defense’s COVID-19 vaccination
requirement violated the Religious Freedom Restoration
Act (“RFRA”) and the First Amendment. (Id.)
In the following months, the Court certified a class
and entered preliminary injunctions. (See Docs. 47, 72, 77,
86.) This relief included, among other things, enjoining
Defendants from (1) “taking, furthering, or continuing
any disciplinary or separation measures against the
members of the Class for their refusal to receive the
COVID-19 vaccine” and (2) “plac[ing] or continu[ing]
active reservists on no points, no pay status for their
refusal to get vaccinated for COVID-19 due to their
sincerely held religious beliefs.” (Modified Preliminary
Injunction, Doc. 86, Pg. ID 5012-13.) On November 29,
2022, the Sixth Circuit affirmed the injunctions. Doster v.
Kendall, 54 F.4th 398 (6th Cir. 2022), vacated by Kendall
v. Doster, 144 S. Ct. 481, 217 L. Ed. 2d 248 (2023).
Then, in December 2022, the James M. Inhofe
National Defense Authorization Act for Fiscal Year 2023
was enacted. Pub. L. No. 117-263, § 525. Pursuant to this
legislation, on January 10, 2023, the Secretary of Defense
rescinded the vaccine mandate and specific adverse
actions for those servicemembers who sought exemptions
10a
Appendix C
on religious grounds. (See Notice of Recission, Doc. 100-1.)
Subsequently, Defendants filed a petition for rehearing
with the Sixth Circuit and requested that the preliminary
injunctions be vacated as moot. (Petition for Rehearing,
Case. No. 22-3702, Doc. 60-1.) The Sixth Circuit denied
rehearing, see Doster v. Kendall, 65 F.4th 792, 793 (6th
Cir. 2023), and Defendants filed a writ of certiorari with
the Supreme Court. On December 11, 2023, the Supreme
Court granted certiorari, vacated the Sixth Circuit’s
judgment, and ordered the Sixth Circuit to instruct this
Court to vacate its preliminary injunctions as moot.
Kendall v. Doster, 144 S. Ct. 481, 217 L. Ed. 2d 248 (2023).
On January 18, 2024, after the Sixth Circuit remanded
this matter to the Court with instructions, the Court
vacated its preliminary injunctions as moot. (Vacating
Preliminary Injunctions, Doc. 123.) The Court then lifted
the stay and ordered the parties to provide supplemental
briefing concerning the mootness of this case in its
entirety. (1/30/2024 Notation Order.)
Plaintiffs concede that the mandate’s recission “moots
most of this case for many of the named Plaintiffs and much
of the class.” (Plaintiffs’ Supp., Doc. 125, Pg. ID 5968.) Yet,
Plaintiffs maintain that a live case or controversy remains
for two Plaintiffs — Joe Dills and Christopher Schuldes.
(Id. at Pg. ID 5967-68.) As for relief, Plaintiffs assert that
the Court may grant back pay and retirement points to
these two reservists who were placed on no-points, no-pay
status due to vaccine refusal. Id.
11a
Appendix C
Dills is a Staff Sergeant in the Air Force serving as
an active reservist. (Dills Decl., Doc. 125-2, Pg. ID 5982.)
Dills received a letter of reprimand concerning the vaccine
mandate and was transferred to no-points, no-pay status.
(Id.) He consequently missed drill weekends from January
through September 2022, so he did not receive $2,972.56
in drill pay and 32 reserve retirement points. (Id. at Pg.
ID 5983.) These lost retirement points “will require [Dills]
to serve for another year longer than [he] would otherwise
have, to be eligible for retirement,” and Dills expects to
retire with less retirement pay as a result. (Id.)
Schuldes, a Senior Master Sergeant in the Air Force
serving as an active reservist, is in a similar situation.
(Schuldes Decl., Doc. 125-1, Pg. ID 5980.) As a result of
being transferred to no-points, no-pay status, Schuldes
missed drill weekends from January through August
2022. (Id. at Pg. ID 5980-81.) This translated to a loss
of $3,436.64 in drill pay and 32 retirement points. (Id. at
Pg. ID 5981.) These lost retirement points “will require
[Schuldes] to serve for another year longer than [he]
would otherwise have, to be eligible for retirement,” and
Schuldes expects to retire with less retirement pay as a
result. (Id.)
LAW
The question before the Court is whether the case as
a whole is moot. After all, a moot preliminary injunction
does not necessarily render a case moot in its entirety. See
Univ. of Tex. v. Camenisch, 451 U.S. 390, 394-95, 101 S.
12a
Appendix C
Ct. 1830, 68 L. Ed. 2d 175 (1981). Because federal courts
may only adjudicate “actual, ongoing controversies,” a
case becomes moot if “the issues presented are no longer
live or the parties lack a legally cognizable interest in
the outcome.” Honig v. Doe, 484 U.S. 305, 317, 108 S. Ct.
592, 98 L. Ed. 2d 686 (1988); Los Angeles Cnty. v. Davis,
440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1978)
(quotation omitted). “The test for mootness is whether
the relief sought would, if granted, make a difference to
the legal interests of the parties.” Hanrahan v. Mohr, 905
F.3d 947, 960 (6th Cir. 2018) (cleaned up). In other words,
a court must be able to grant “effectual” relief. Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.
Ct. 447, 121 L. Ed. 2d 313 (1992) (quoting Mills v. Green,
159 U.S. 651, 653, 16 S. Ct. 132, 40 L. Ed. 293 (1985)).
ANALYSIS
To begin, Plaintiffs concede that the mandate’s
recission “moots most of this case for many of the named
Plaintiffs and much of the class.” (Plaintiffs’ Supp., Doc.
125, Pg. ID 5968.) Plaintiffs argue that the Court may
still remedy back pay and retirement points that were
improperly withheld from Dills and Schuldes due to
vaccine refusal. (Id.) However, Plaintiffs did not seek
such relief in their Complaint. And, even if they had, the
Court is unable to render back pay and retirement points
to reservists who did not attend trainings.
13a
Appendix C
I.
Plaintiffs Did Not Seek Retrospective Relief in
Their Complaint
Defendants argue that this case is moot because—
as reflected in the Complaint—Plaintiffs only sought
prospective relief, not remedies for back pay and
retirement points. (Renewed Motion to Dismiss, Doc. 111,
Pg. ID 5405-09.) “The test for mootness is whether the
relief sought would, if granted, make a difference to the
legal interests of the parties.” Hanrahan, 905 F.3d at 960
(cleaned up) (emphasis added). So, the Court must consider
the relief Plaintiffs first sought in this case.
In their Complaint, Plaintiffs seek: (1) a preliminary
injunction to preclude Defendants from taking enforcement
or punitive action against Plaintiffs during the pendency
of this matter “or until or unless Defendants[] rescind
their current no-religious accommodation policy,” (2) a
declaration that the challenged orders are unconstitutional
and illegal, (3) injunctive relief ordering the good faith
processing of accommodations, (4) injunctive relief
ordering Defendants to grant Plaintiffs’ accommodation
requests, (5) costs and reasonable attorney fees, and (6)
other such relief that the Court deems just and proper.
(Compl., Doc. 1, Pg. ID 18-19.)
None of this relief remains available after the
recission of the mandate and the Supreme Court’s
decision instructing this Court to vacate its preliminary
injunctions as moot. Simply put, this case was framed as a
suit for prospective relief, and such prospective relief may
14a
Appendix C
no longer be given by this Court. “Where, as a tactical
matter, the complaint confined its requested relief to an
injunction, courts are reluctant to permit an eleventh-hour
change to avoid mootness.” Alexander v. Miller, No. 320CV-44, 2023 U.S. Dist. LEXIS 174709, 2023 WL 6439887,
at *11 (E.D. Ky. Sept. 29, 2023) (citing Youngstown Publ’g
Co. v. McKelvey, 189 F. App’x 402, 407 (6th Cir. 2006)). So,
Plaintiffs cannot now seek additional relief for past harms
through the prospective injunctive and declaratory relief
sought in the Complaint. See Kanuszewski v. Mich. HHS,
927 F.3d 396, 406 (6th Cir. 2019) (“The distinction between
past and ongoing or future harms is significant because
the type of harm affects the type of relief available.”).
District courts throughout the nation have applied
similar reasoning when confronted with the post-recission
mootness question at the heart of this case. See, e.g.,
Jackson v. Mayorkas, No. 4:22-CV-0825, 2023 U.S. Dist.
LEXIS 144078, 2023 WL 5311482, at *4 (N.D. Tex. Aug.
17, 2023) (concluding that missing training because of
vaccine status cannot prevent mootness when plaintiff
sought only prospective relief); Bongiovanni v. Austin,
No. 3:22-CV-580, 2023 U.S. Dist. LEXIS 115143, 2023 WL
4352445, at *6 (M.D. Fla. July 5, 2023) (dismissing case
as moot after finding, among other things, that plaintiffs
never sought a declaration that they were entitled to back
pay or any monetary benefits in the Complaint); Bazzrea v.
Mayorkas, No. 3:22-CV-265, 677 F. Supp. 3d 651, 2023 U.S.
Dist. LEXIS 101876, 2023 WL 3958912, at *6 (S.D. Tex.
June 12, 2023) (rejecting late-in-the-day damages request
because “declaratory and injunctive relief are the only
15a
Appendix C
types of relief requested in connection with [Plaintiffs’]
RFRA claim”). The Court finds this reasoning persuasive.
Plaintiffs’ citation to Schelske v. Austin, No. 6:22-CV049, 2023 U.S. Dist. LEXIS 163101, 2023 WL 5986462
(N.D. Tex. Sept. 14, 2023), is distinguishable on a number
of fronts. As an initial matter, those servicemembers
sought “back pay” in their amended complaint. 2023
U.S. Dist. LEXIS 163101, [WL] at *31. And, although the
district court permitted the back pay claims to proceed, it
specifically recognized a distinction: “unlike cases where
a claim for reinstatement had been previously dismissed,
the claim for reinstatement here remains” since plaintiffs
remain separated from the Army. 2023 U.S. Dist. LEXIS
163101, [WL] at 32. The same cannot be said for the case at
bar. Plaintiffs did not seek back pay or retirement points
in their Complaint and have since been removed from nopay, no-points status.
Plaintiffs also contend that the collateral consequences
doctrine keeps this case alive. (See Response, Doc. 112, Pg.
ID 5832-34.) Under this doctrine, a case is not considered
moot when “a ‘collateral’ injury survives that can be
remedied by [the] court even though the primary injury
may have been resolved.” EEOC v. Fed. Express Corp.,
558 F.3d 842, 847 (6th Cir. 2009); see also Sibron v. New
York, 392 U.S. 40, 53-59, 88 S. Ct. 1889, 20 L. Ed. 2d 917
(1968). But, even if the case is viewed through the lens of
the collateral consequences doctrine, Plaintiffs face two
obstacles that prevent this matter from remaining a live
case or controversy.
16a
Appendix C
First, as discussed above, there is a mismatch between
the relief sought in the Complaint and what Plaintiffs now
seek. Although Dills and Schuldes missed drill weekends
beginning in January of 2022 and the Complaint was
later filed on February 16, 2022, Plaintiffs did not seek
retrospective relief, back pay, or retirement points. (See
Dills Decl., Doc. 125-2, Pg. ID 5983; Schuldes Decl., Doc.
125-1, Pg. ID 5981; Compl., Doc. 1.) Instead, as described
above, the Complaint contemplates only prospective relief.
Second, even if the Court considers these claims, they
nevertheless fail to save this matter from mootness. As
noted above, the question of mootness turns on whether
the Court can offer any “effectual” relief. Church of
Scientology of Cal., 506 U.S. at 12. And, for the following
reasons, the Court cannot grant the Plaintiffs’ recently
requested relief of back pay and retirement points.
II. The Court Cannot Grant Back Pay as Relief
Plaintiffs’ claims for back pay do not create a live
case or controversy. The United States pays its military
servicemembers in one of two ways: members serving in
full-time active duty are paid because of their professional
status, and members serving part-time in the reserves
are paid for drills and training they attended. See
Kuntz v. United States, 141 Fed. Cl. 713, 716 (2019); 37
U.S.C. §§ 204(a)(1), (2), and 206(a)(1). Under this scheme,
reservists cannot recover back pay for drills or training
they did not attend. Palmer v. United States, 168 F.3d
1310, 1314 (Fed. Cir. 1999); see also Radziewicz v. United
States, 167 Fed. Cl. 62, 67 (2023) (collecting cases). This is
17a
Appendix C
true even if reservists were wrongfully prevented from
attending the training or drill. Palmer, 168 F.3d at 1314.
In response, Plaintiffs point to Schelske v. Austin,
2023 U.S. Dist. LEXIS 163101, 2023 WL 5986462 (N.D.
Tex. Sept. 14, 2023). There, the district court held that
RFRA permitted claims for back pay in connection with
claims for reinstatement to active duty because back pay
was “integral” to restoring prospective class members to
their former status before separation from the military.
2023 U.S. Dist. LEXIS 163101, [WL] at *31-32. But, the
Court finds that holding unpersuasive here. The issue
in Schelske involved active-duty servicemembers who
were entitled to pay they would have earned but for their
unlawful separation. Id. Plaintiffs, in contrast, were
unable to attend drills while serving as reservists. (Dills
Decl., Doc. 125-2, Pg. ID 5982; Schuldes Decl., Doc. 1251, Pg. ID 5980.) Reservists can only receive pay for drills
they attended. 37 U.S.C. § 206(a)(1). As a result, “military
reservists can find themselves ‘without recourse’ for
wrongful treatment, ‘when a service member on regular
active duty would have such recourse if similarly treated.”
Radziewicz, 167 Fed. Cl. at 67 (quoting Palmer, 168 F.3d
at 1314-15).
Next, although Plaintiffs reference the constructive
service doctrine cited in Barnick v. United States, 591
F.3d 1372 (Fed. Cir. 2010), the Court does not find this
reasoning to be on point. Under the constructive service
doctrine, “military personnel who have been illegally or
improperly separated from service are deemed to have
continued in active service until their legal separation.”
18a
Appendix C
Christian v. United States, 337 F.3d 1338, 1347 (Fed.
Cir. 2003). But, the court in Barnick declined to extend
the constructive service doctrine to the plaintiff, in part,
because he was a reservist not on extended active duty.
Barnick, 591 F.3d at 1379. In other words, constructive
service applies to servicemembers on active duty. Reilly
v. United States, 93 Fed. Cl. 643, 648-49 (2010). Plaintiffs
have not alleged that Dills or Schuldes was on active duty.
(Compl., Doc. 1, ¶¶ 17, 20; Dills Decl., Doc. 125-2, Pg. ID
5982; Schuldes Decl., Doc. 125-1, Pg. ID 5980.)
Plaintiffs further contend that the Court can grant
back pay because it is equitable relief. (Plaintiffs’ Supp.,
Doc. 125, Pg. ID 5971.) But, even assuming that RFRA
allows servicemembers to secure equitable relief against
the military for wrongful conduct, Dills and Schuldes
still cannot receive back pay for the drills because they
did not participate in them. See Palmer, 168 F.3d at 1314.
Accordingly, because the Court cannot grant relief on
this issue, requested back pay does not save this matter
from moo tness. See Church of Scientology of Cal., 506
U.S. at 12.
III. The Court Cannot Grant Retirement Points as
Relief
The reasoning pertaining to back pay also applies
to Plaintiffs’ claim for retirement points. Plaintiffs now
seek retirement points they did not receive while on nopay, no-points status. (Plaintiffs’ Supp., Doc. 125, Pg.
ID 5967-68.) Reservists receive retirement pay based
on the points they accrue throughout their service. See
10 U.S.C. § 12733. Similar to pay, reservists can accrue
19a
Appendix C
points, in part, by attending drill sessions. See 10 U.S.C.
§ 12732(a)(2)(B). The Court concludes that the statutory
structure—paired with the Federal Circuit’s reasoning in
Palmer—forecloses Plaintiffs’ desired relief. Plaintiffs did
not attend drill sessions while on no-pay, no-points status,
so they cannot receive credit for participating.
Alternatively, sovereign immunity bars the recovery
of retirement points in this case. Awarding these points
has the effect of increasing Plaintiffs’ retirement pay,
which amounts to monetary damages. See DeGroat v.
Townsend, 495 F. Supp. 2d 845, 852 (S.D. Ohio 2007);
Sosa v. Seciy, Dep’t of Def., 47 F.App’x 350, 351-52 (6th
Cir. 2002). Congress may only waive sovereign immunity
through clear statutory language. Dep’t of Agric. Rural
Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 144 S. Ct. 457,
465-66, 217 L. Ed. 2d 361 (2024). Although Plaintiffs argue
that the Supreme Court’s decision in Tanzin v. Tanvir
recognized that RFRA waives sovereign immunity, this
holding was limited to damages against officials in their
individual capacities. 592 U.S. 43, 141 S. Ct. 486, 208 L.
Ed. 2d 295 (2020). In this case, Plaintiffs only brought suit
against Defendants in their official capacities. (Compl.,
Doc. 1.) Thus, Plaintiffs have not provided authority that
sovereign immunity was waived for this matter.
Accordingly, because the Court cannot grant relief
on this issue, the requested retirement points do not save
this matter from mootness. See Church of Scientology of
Cal., 506 U.S. at 12.
***
20a
Appendix C
This case is moot in its entirety. Plaintiffs brought this
class action to seek prospective injunctive and declaratory
relief from the military’s vaccine mandate. Throughout
the course of this litigation, the Court granted much of
the requested relief by way of preliminary injunctions.
The mandate was ultimately rescinded, and the Court
received instructions from the Supreme Court to vacate
its preliminary injunctions as moot. Although such a
decision may not necessarily moot a case in its totality, it
does here. Plaintiffs sought only prospective relief in their
Complaint, and the retrospective relief of back pay and
retirement points now sought cannot be given.
CONCLUSION
Accordingly, the Court hereby GRANTS Defendants’
Renewed Motion to Dismiss (Doc. 111). This case is
DISMISSED WITHOUT PREJUDICE and the matter
is TERMINATED from the Court’s docket.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
By: /s/ Matthew W. McFarland
JUDGE MATTHEW W. McFARLAND
21a
D
APPENDIX DAppendix
— JUDGMENT
OF THE
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF OHIO,
WESTERN DIVISION – CINCINNATI,
FILED MARCH 18, 2024
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION – CINCINNATI
Case No. 1:22-cv-84
Judge Matthew W. McFarland
HUNTER DOSTER, et al.,
Plaintiffs,
v.
SECRETARY OF THE AIRFORCE, et al.,
Defendants.
JUDGMENT IN A CIVIL CASE
Jury Verdict.
This action came before the
Court for a trial by jury. The
issues have been tried and the
jury has rendered its verdict.
X Decision by Court.
This action came to trial
or hearing before the
Court. The issues have
been tried or heard and a
decision has been rendered.
22a
Appendix D
IT IS ORDERED AND ADJUDGED that the Court
hereby GRANTS Defendants’ Renewed Motion to
Dismiss (Doc. 111). This case is DISMISSED WITHOUT
PREJUDICE and the matter is TERMINATED from the
Court’s docket.
Dated: March 18, 2024.
Richard W. Nagel, Clerk of Court
By: /s/ Kellie A. Fields
Deputy Clerk
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