Petition for Writ of Certiorari — Michael Poffenbarger, Petitioner 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

________________

MICHAEL POFFENBARGER, ET AL., ON BEHALF

OF HIMSELF AND OTHERS SIMILARLY SITUATED,

PETITIONERS,

TROY MEINK, 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

ZACHARY GOTTESMAN

CHRIS WIEST ATTORNEY

9200 Montgomery Road,

AT LAW, PLLC

Bldg E, Ste. 18B

50 East Rivercenter Blvd. Cincinnati, OH 45242

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The Vaccine Mandate was rescinded by an act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

reinstatement of reservists.

(i)

PARTIES TO THE PROCEEDING

The following individual was a Plaintiff before the

trial court and an Appellant in the Sixth Circuit:

Michael Poffenbarger on behalf of himself and others

similarly situated.

The following individuals are Defendants before

the trial court and Appellees in the Sixth Circuit: 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 Richard W. Scobee, in his official capacity

as Commander of the Air Force Reserve Command,

Major General Jeffrey T. Pennington, in his official

capacity as Commander of the 4th Air Force, Lt.

Colonel Christopher Kojak, in his official capacity as

Commander of the 445th Operations Support

Squadron, Colonel Raymond A. Smith, Jr., in his

official capacity as the 445th Airlift Wing, 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. General

Scobee has been replaced by Lt. General John P.

Healy. General Pennington has been replaced by

Major General Paul R. Fast. Colonel Smith has been

replaced by Colonel Douglas A. Perry, Jr.

iii

RELATED PROCEEDINGS

The proceedings directly related to this case are:

Doster v. Kendall, 48 F.4th 608 (6th Cir. 2022).

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, 588 F. Supp. 3d 770 (S.D.

Ohio 2022).

Poffenbarger v. Kendall, 2024 WL 1155965 (S.D.

Ohio, Mar. 18, 2024).

Poffenbarger v. Kendall, 137 F.4th 563 (6th Cir.

2025).

TABLE OF CONTENTS

Questions Presented .................................................... i

Parties to the Proceeding ........................................... ii

Related Proceedings .................................................. iii

Table of Appendices ................................................... vi

Table of Authorities .................................................. vii

Introduction ................................................................ 1

Opinions Below ........................................................... 3

Jurisdiction ................................................................. 3

Constitutional and Statutory Provisions Involved ..... 4

Statement ................................................................... 4

A. Factual Background ..................................... 4

B. Procedural Background ................................ 6

Reasons for Granting the Petition ........................... 11

This Court should grant certiorari

because the decisions below undermine

RFRA and conflict with binding

precedent from this Court ........................... 11

II. Judicial

estoppel

forecloses

Respondents’ arguments against back

pay and restitutionary relief ....................... 20

III. This case is important and is an ideal

vehicle .......................................................... 24

Conclusion................................................................. 25

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............ 12a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO, WESTERN

DIVISION – CINCINNATI, FILED MARCH 18,

2024 ...................................................................... 14a

APPENDIX D — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO, WESTERN

DIVISION – CINCINNATI, FILED MARCH 18,

2024 ...................................................................... 24a

TABLE OF AUTHORITIES

Page(s)

Cases

Albemarle Co. v. Moody,

422 U.S. 405 (1975)................................................ 16

Barnick v. United States,

591 F.3d 1372 (Fed. Cir. 2010) .............................. 17

Bell v. Hood,

327 U.S. 678 (1946)................................................ 16

Borst v. Chevron Corp.,

36 F.3d 1308 (5th Cir. 1994)............................ 15, 19

Bowen v. Massachusetts,

487 U.S. 879 (1998).......................................... 19, 20

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)................................................ 24

Chafin v. Chafin,

568 U.S. 165 (2013).......................................... 11, 12

Chauffeurs, Teamsters & Helpers,

Loc. No. 391 v. Terry,

494 U.S. 558 (1990).......................................... 15, 19

Chen v. Allstate Ins. Co.,

819 F.3d 1136 (9th Cir. 2016)........................... 12-13

Chilcott v. Orr,

747 F.2d 29 (1st Cir. 1984) ................................ 7, 22

Church v. Biden,

573 F. Supp. 3d 118, 2021 WL 5179215

(D.D.C. Nov. 8, 2021) ......................................... 7, 23

vii

CIGNA Corp. v. Amara,

563 U.S. 421 (2011)................................................ 17

Cimerman v. Cook,

561 Fed. Appx. 447 (6th Cir. 2014) ....................... 16

CONRAIL v. Darrone,

465 U.S. 624 (1984)................................................ 16

Crugher v. Prelesnik,

761 F.3d 610 (6th Cir. 2014).................................. 16

Davis v. Wakelee,

156 U.S. 680 (1895)................................................ 21

DeVargas v. Mason & Hanger-Silas Mason Co.,

911 F.2d 1377 (10th Cir. 1990), cert. denied,

111 S. Ct. 799 (1991).............................................. 20

Dilley v. Alexander,

627 F.2d 407 U.S. App. D.C. 354

(D.C. Cir. 1980) ...................................................... 17

Downie v. Independent Drivers Ass’n Pension Plan,

934 F.2d 1168 (10th Cir. 1991).............................. 17

Doster v. Kendall,

48 F.4th 608 (6th Cir. 2022) ................................ 2, 8

Firefighters Local Union No. 1784 v. Stotts,

467 U.S. 561 (1984)................................................ 12

Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000)................................................ 11

Fulton v. City of Philadelphia,

593 U.S. 522 (2021)................................................ 24

Gleason v. Malcom,

718 F.2d 1044 (11th Cir. 1983).............................. 20

viii

Guitard v. Sec’y of Navy,

967 F.2d 737 (2d Cir. 1992) ......................... 7, 22, 23

Harkless v. Sweeny Independent School Dist.,

427 F.2d 319 (5th Cir. 1979).................................. 15

Hartikka v. United States,

754 F.2d 1516 (9th Cir. 1985)............................ 7, 22

Howe v. City of Akron,

801 F.3d 718 (6th Cir. 2015).................................. 16

Hunter v. Underwood,

471 U.S. 222 (1985)................................................ 12

Kendall, Secretary of the Air Force v. Doster,

No. 23-154, 601 U.S. __ (2023) ................................ 9

Knox v. SEIU, Local 1000,

567 U.S. 298 (2012)................................................ 12

Kolstad v. ADA,

527 U.S. 526 (1999).......................................... 14, 15

Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118 (2014)................................................ 15

Mertens v. Hewitt Assocs.,

508 U.S. 248 (1993)................................................ 16

Miss. State Chapter, Operation Push, Inc. v. Mabus,

932 F.2d 400 (5th Cir. 1991).................................. 12

N.C. State Conference of NAACP v. McCrory,

831 F.3d 204 (4th Cir. 2016).................................. 12

New Hampshire v. Maine,

532 U.S. 742 (2001).............................. 21, 22, 23, 24

Oppenheim v. Campbell,

571 F.2d 660 (D.C. Cir. 1978) ................................ 17

Palmer v. United States,

168 F.3d 1310 (Fed. Cir. 1999) ........................ 13, 14

Pegram v. Herdrich,

530 U.S. 211 (2000)................................................ 21

Poffenbarger v. Kendall,

137 F.4th 563 (6th Cir. 2025) .......... 3, 11, 13, 14, 24

Poffenbarger v. Kendall,

588 F. Supp. 3d 770 (OHSD 2022) ...... 1, 2, 8, 21, 23

Porter v. Warner Holding Co.,

328 U.S. 395 (1946)................................................ 15

Rankin v. McPherson,

483 U.S. 378 (1987)................................................ 14

Schelske v. Austin,

2023 U.S. Dist LEXIS 163101

(N.D. Tex. 2023) ......................................... 13, 15, 19

Sibron v. New York,

392 U.S. 40 (1968).................................................. 12

Tanzin v. Tanvir,

592 U.S. 43 (2020).................................................. 14

Teamsters v. Terry,

494 U.S. 558 (1990)................................................ 16

Tull v. United States,

481 U.S. 412 (1987).................................... 15, 16, 19

Turker v. Ohio Dep’t of Rehabilitation & Corrections,

157 F.3d 453 (6th Cir. 1998).................................. 16

Ulmet v. United States,

888 F.2d 1028 (4th Cir. 1989)................................ 20

U.S. Navy Seals 1-26 v. Biden,

27 F.4th 336 (5th Cir. 2021) .................................. 15

United States v. Burke,

504 U.S. 229 (1992)................................................ 16

United States v. Concentrated Phosphate Export Assn.,

393 U.S. 199 (1968)................................................ 11

United States v. W. T. Grant Co.,

345 U.S. 629 (1953)................................................ 18

West v. Gibson,

527 U.S. 212, 119 S. Ct. 1906 (1999)............... 14, 15

Wooten v. Housing Authority of Dallas,

723 F.2d 390 (5th Cir. 1983).................................. 12

Constitutional Provisions

U.S. Const. Amend. I ............................................ 4, 20

Statutes and Regulations

28 U.S.C. § 1346(a)(2), Tucker Act ...................... 4, 18

28 U.S.C. § 1254 ......................................................... 3

37 U.S.C. § 206 ..................................................... 4, 18

42 U.S.C. § 2000bb, Religious Freedom Restoration

Act of 1993 (“RFRA”) .............. 3-7, 11, 14, 17, 19, 24

18 Moore’s Federal Practice § 134.30, p. 134-62

(3d ed. 2000) ........................................................... 21

18 C. Wright, A. Miller, & E. Cooper, Federal

Practice and Procedure § 4477, p. 782 (1981)....... 21

117th Congress, HR 1776 at Sec. 525 ........................ 9

Pub. L. No. 117-263, 136 Stat. 2395 at Sec. 525 ....... 9

Other Authorities

https://www.congress.gov/117/plaws/publ263/PL

AW-117publ263.pdf (last accessed 6/19/2024) ........ 9

DOD

Rescission,

https://media.defense.gov/

2023/Jan/10/2003143118/-1/-1/1/SECRETARYOF-DEFENSE-MEMO-ON-RESCISSION-OFCORONAVIRUS-DISEASE-2019-VACCINATIONREQUIREMENTS-FOR-MEMBERS-OF-THEARMED-FORCES.PDF (DoD rescission; last

accessed 6/19/2024) .................................................. 9

https://media.defense.gov/2023/Jan/24/20031488

10/-1/-1/1/DAF%20COVID-19%20%E2%80%8

CVACCIN%E2%80%8CATION%20MAN%E2%

80%8CDATE%20RESCISSION.PDF

(DAF

rescission; last accessed 6/19/2024)......................... 9

DAF Guidance, https://www.af.mil/Portals/1/

documents/2023SAF/PolicyUpdates/L6JT_SecAF_

Signed_DAF_guide_Adverse_Actions_Religious

_Requests_24Feb23.pdf

(last

accessed

6/19/2024) ................................................................. 9

INTRODUCTION

Defendants/Appellees (“Defendants” and/or

“Respondents”), all Air Force Officials sued in their

official capacities, implemented a mandatory COVID19 vaccine requirement for the branch (“Vaccination

Mandate”). Plaintiff is a regular reserve member of

the Air Force stationed at Wright Patterson Air Force

Base in Ohio. Defendants illegally denied the vast

majority of religious accommodation requests to their

Vaccination Mandate to include improperly denying

Plaintiff’s requested accommodation. Plaintiff, who

refused to compromise his well-founded religious

beliefs and receive the COVID-19 vaccine, was

disciplined by Defendants with a reprimand in his file

and was placed on a “no points, no pay” status effective

January 10, 2022. That meant Plaintiff could not

attend drills, could not receive pay for attending those

drills, and did not receive points towards his military

retirement.

In February of 2022, a preliminary injunction

issued in favor of Plaintiff preventing further

promised adverse actions by Defendants (including

blocking an impending involuntary transfer to the

Individual Ready Reserve and discontinuation of

Plaintiff’s health benefits), but the preliminary relief

did not extend to the restoration of lost pay or lost

points or a return to the active reserve, and those

harms continued. See Poffenbarger v. Kendall, 588 F.

Supp. 3d 770 (OHSD 2022). In fact, Defendants

argued, and the district court accepted, that Plaintiff

could receive restitution of back pay and back

retirement points in a final judgment and, thus, that

(1)

sort of harm, although

irreparable. Id. at 796-797.

recoverable,

was

not

In July of 2022, in a separate (but related)

matter, class-wide relief was entered that required the

restoration of Plaintiff to a “pay, points, and drill

status.” 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 Vaccination

Mandate. In January and February of 2023,

Respondents took steps to remedy most adverse

actions relating to the Vaccination Mandate, such as

removing reprimands from service records, but they

declined to fully remedy the consequences of their

illegal discrimination, including refusing to restore

reservist Plaintiff’s records to reflect continued

reserve service from January to July of 2022, refusing

to restore Plaintiff’s 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 by executing an about face, and 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

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.

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 limiting the

forms of equitable relief available under RFRA.

Poffenbarger v. Kendall, 137 F.4th 563 (6th Cir. 2025).

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-11a) is

reported at 137 F.4th 563. The district court’s opinion

(App.14a-23a) is reported at 2024 U.S. Dist. LEXIS

47189.

JURISDICTION

The Sixth Circuit entered judgment on May 12,

2025. (App.12a). Circuit Justice Kavanaugh granted

an extension of time to file this petition to October 9,

2025. This Court has jurisdiction under 28 U.S.C.

§ 1254.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

A. U.S. Const. Amend. I.

B. 37 U.S.C. § 206

C. 42 U.S.C. § 2000bb-42 U.S.C. § 2000bb-4,

Religious Freedom Restoration Act of 1993

(“RFRA”)

D. 28 U.S.C. § 1346(a)(2), Tucker Act

STATEMENT

A. Factual Background

The case below was instituted by Plaintiff, Air

Force Lieutenant Michael Poffenbarger (“Petitioner”

and/or “Plaintiff”), a reservist stationed at Wright

Patterson Air Force Base, in Dayton, Ohio, after

Defendants illegally denied him a religious

accommodation to the Vaccination Mandate. [Ver.

Compl., Doc. 1, at PageID#1-43.] The claims raised

were under the Religious Freedom Restoration Act

(42 U.S.C. § 2000bb) (“RFRA”) and the First

Amendment’s Free Exercise Clause. Id.

In September of 2021, Plaintiff, then on active

reserve duty for training and in Officer Training

School, received an order by Defendant Kendall,

Secretary of the Air Force, to get the COVID-19

vaccine. Id. ¶ 7; Declaration Poffenbarger, Doc. 2-1,

PageID#62, see also, Doc. 1-1, PageID#15-16. As a

consequence, Plaintiff began the administrative

process to seek a religious accommodation under

RFRA, and its implementing regulations, including,

without limitation, Department of Defense Instruction

(“DoDI”) 1300.17. Id. ¶ 8.

With his request for religious accommodation

still pending, Plaintiff was permitted to graduate

Officer Training School and was commissioned in

September of 2021. Id. ¶ 9. He was then returned to

active reserve duty and was assigned to the 455th

Operational Support Squadron, located at WrightPatterson, Air Force Base. Id.

On October 2, 2021, Plaintiff received a direct

order to be vaccinated from his then-commander, Lt.

Colonel Sopko (who has since been replaced by Lt.

Colonel Kojak). Id. ¶ 10; Compl. Exhibit 2, Doc. 1-2,

PageID#17-19. Again, in response to this order,

Plaintiff pursued administrative remedies under

RFRA, DoDI, and applicable Air Force Instructions,

and his religious accommodation request was sent to

the Commander of Air Force Reserve Command,

Defendant, Lt. General Richard W. Scobee (“Lt. Gen.

Scobee”). Id. ¶ 11.

On or about October 22, 2021, Lt. Gen. Scobee

improperly denied Plaintiff’s accommodation request.

Id. ¶ 12; Doc. 1-3, PageID#20. Although the denial

acknowledged the sincerity of Plaintiff’s religious

beliefs, it asserted that mission readiness required

that Plaintiff still be vaccinated against COVID-19.

Id. ¶ 13 At the same time, however, Lt. Gen. Scobee

had approved numerous accommodations for

administrative and/or medical reasons, allowing those

members to remain unvaccinated against COVID-19.

Id. Thus, Lt. Gen. Scobee’s denial of a religious

accommodation to Plaintiff could only be explained as

a hostility to Plaintiff’s religious beliefs, and not as a

good faith application of RFRA. Id.

On October 30, 2021, Plaintiff undertook an

administrative appeal of Lt. Gen. Scobee’s denial to

the Surgeon General of the Air Force, Lt. General

Robert I. Miller (“Lt. Gen. Miller”). Id. ¶ 14; Doc. 1-4,

PageID#21-23. On December 8, 2021, Lt. Gen. Miller

also improperly denied Plaintiff’s appeal. Id. ¶ 15.

Days later, on December 12, 2021, Plaintiff

received an order to vaccinate from his commander, Lt.

Colonel Christopher Kojak, forwarding an order from the

4th Air Force Commander, Major General Jeffrey

Pennington, to vaccinate. Id. ¶ 18; Doc. 1-6, PageID#25-28.

B. Procedural Background

Plaintiff filed suit on January 2, 2022, raising a

claim under RFRA and the First Amendment. Id.;

PageID#1-43. Plaintiff then sought a preliminary

injunction at a hearing held on February 22, 2022.

[Tr., Doc. 33, PageID#1226-1303.] At the hearing,

Plaintiff testified that he joined the Air Force and was

on active duty starting in November 2005. Id. at

PageID#1231. He accrued 905.8 combat hours in

overseas deployments. Id. at PageID#1232. In 2014,

after getting married and as a result of family

demands, Plaintiff left active duty but continued

serving in the reserves. Id. at PageID#1232-1233.

Plaintiff testified that he was being denied

reserve pay and retirement points as a result of his

refusal to vaccinate. Id., at PageID#1241-1242, 1257,

Hearing Exhibit 7. He also testified about how

retirement points should accrue, and he testified

about the impact of the denial of such points on his

eventual retirement. Id.

Defendants, in opposing preliminary injunctive

relief, argued as follows:

It is unclear whether Plaintiff alleges that

involuntary reassignment to the Individual Ready

Reserve and loss of eligibility for health care

constitutes irreparable harm. See Pl.’s Notice 2,

Doc. No. 11, PageID 284. 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. 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. 22, PageID#369) (emphasis added).]

Following the hearing, a preliminary injunction

issued in favor of Plaintiff and prevented further

adverse actions by Defendants (including blocking an

impending transfer to the Individual Ready Reserve

and blocking the discontinuation of his health

benefits), but that relief did not extend to the

restoration of lost pay and lost points (or even an order

to be put back in that status going forward from the

hearing, such that he continued to lose pay and

points). See Poffenbarger v. Kendall, 588 F. Supp. 3d

770 (OHSD 2022). That was because Defendants

argued, and the district court accepted, Plaintiff could

receive restitution in the form of back pay and back

retirement points in a final judgment. Id. at 796-797;

Govt. Opposition to Preliminary Injunction, at Doc.

22, PageID#369.

On March 23, 2022, Plaintiff filed a Verified

Amended Complaint seeking relief for himself and on

behalf of a class of similarly situated persons. [Am.

Ver. Compl., Doc. 38, PageID#1315-1329.] That

complaint incorporated and included documentation

evidencing that Defendants illegally placed Plaintiff

on a no-points and no-pay status. Id., at Doc. 38-7,

PageID#1351-1363. The prayer for relief explicitly

included a request to the Court “to restore to him and

correct his military records to restore any lost

credit for points or pay he is due and were lost

due to Defendants’ illegal actions.” Id. at Doc. 38,

PageID#1326 (emphasis added).

In July of 2022, in a separate (but related)

matter, class-wide relief was entered that required the

restoration of Plaintiff to active reserve duty, and thus

the accrual of such pay and points going forward. See

Doster v. Kendall, 48 F.4th 608 (6th Cir. 2022). Then,

Plaintiff’s case below was stayed to await the outcome

of appellate proceedings in Doster. [Order Staying,

Doc. 53, PageID#1473-1478.]

In December of 2022, Congress enacted

legislation directing the Department of Defense, and

its component branches, to repeal the Vaccination

Mandate.2 In January3 and February of 2023, 4

Defendants took steps to remove most adverse actions

from service member’s files, such as Plaintiff’s

reprimand, but Defendants declined to fully remedy their

discrimination in total and to remove its effects root and

branch, including refusing to restore Plaintiff’s records to

reflect continued reserve service from January to July

2022, refusing to restore his lost retirement points, and

refusing to restore his lost back pay.

On January 23, 2024, the district court ordered,

via a notation order, simultaneous briefing by the

parties “to provide this Court with briefing on the

question of mootness in light of the James M. Inhofe

National Defense Authorization Act for Fiscal Year

2023, Pub. L. No. 117-263, 136 Stat. 2395 (2022), and

the Supreme Court's order in Kendall, Secretary of the

Air Force v. Doster, No. 23-154, 601 U.S.___ (2023). All

2 See 117 th Congress, HR 1776 at Sec. 525; 136 Stat. 2395

at Sec. 525; available at https://www.congress.gov/117/plaws/

publ263/PLAW-117publ263.pdf (last accessed 6/19/2024).

DOD Rescission available at https://media.defense.gov/

2023/Jan/10/2003143118/-1/-1/1/SECRETARY-OF-DEFENSEMEMO-ON-RESCISSION-OF-CORONAVIRUS-DISEASE-2019VACCINATION-REQUIREMENTS-FOR-MEMBERS-OF-THEARMED-FORCES.PDF (DoD rescission; last accessed 6/19/2024);

https://media.defense.gov/2023/Jan/24/2003148810/-1/-1/1/DAF%20

COVID-19%20%E2%80%8CVACCIN%E2%80%8CATION%20

MAN%E2%80%8CDATE%20RESCISSION.PDF (DAF rescission;

last accessed 6/19/2024).

4 See DAF Guidance, available at https://www.af.mil/Portals

/1/documents/2023SAF/PolicyUpdates/L6JT_SecAF_Signed_DAF_

guide_Adverse_Actions_Religious_Requests_24Feb23.pdf (last

accessed 6/19/2024).

briefing shall be submitted by February 7, 2024.”

Notably, the district court did not permit Plaintiff to

respond to Defendants’ filing.

In arguing that the case was moot, Defendants

executed an about face and took a contrary position

from their position in the preliminary injunction

proceeding, now arguing that the district court was

without authority to restore Plaintiff’s lost pay and

lost points. [Memo, Doc. 58, PageID#1557-1579.]

Plaintiff demonstrated that he was not made

whole because the relief he sought, consisting of lost

pay and lost points, was not yet restored,

substantiating his lost pay and lost points through a

declaration. [Memo and Declaration in Support, Doc.

59, PageID#1580-1627.] Defendants denied Plaintiff

$4,346.16 in lost drill pay (i.e., back pay) for the drill

weekends he missed from January to June 2022. [Dec.

Poffenbarger ¶ 11, Doc. 59-1, PageID#1593-1595.]

This consisted of 4 drill periods per weekend, at O-1E

pay, with 16 years of prior service, at a rate of $189.09

per drill period, or $4,346.16 in lost drill pay. Id.

Plaintiff 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.

Defendants also denied restoring Plaintiff’s lost

reserve retirement points from the period of January

through June 2022, to include 4 reserve retirement

points for each drill weekend during this six-month

period, for a total of 24 reserve retirement points. Id.

¶12. These lost reserve retirement points constitute

harm because all of a member’s reserve retirement

points (to include prior active-duty periods) are

calculated in retirement pay calculations. Id. ¶13. As

a result, and unless corrected by order of the Court,

Plaintiff ultimately will draw less retirement pay

when he retires, and all because of the illegal

discipline taken against him for not compromising his

sincere religious beliefs against taking the COVID-19

vaccine. Id.

On March 18, 2024, the district court held that

Defendants’ failure to remedy this admitted harm did

not matter, that the court was without authority to

afford the requested relief, and that the case was moot.

[Order, Doc. 60, PageID#1628-1635.] The Sixth

Circuit Affirmed on May 12, 2025. 137 F.4th 563. This

petition follows.

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 Plaintiff. Friends of the Earth, Inc. v. Laidlaw

Envtl. 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

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).

In Schelske v. Austin, a separated soldier who

applied for and was denied a religious accommodation

to the Vaccination Mandate sued and sought equitable

relief to include reinstatement and back pay. 2023

U.S. Dist. LEXIS 163101 (N.D. Tex. 2023). After the

policy was repealed, and despite corrective actions

taken by the Secretaries of the Army and Defense

(now War) materially similar to those taken by the

Secretary of the Air Force here, the soldier did not

receive all of 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 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. The

Plaintiff in Schelske was not in any duty status after

involuntary separation, and he did not perform any

military duties. Schelske is on all fours with this case.

Here in contrast, and relying on Palmer, the

Sixth Circuit held, in part, that Petitioner is not

entitled to backpay due to his status as a reservist. See

Poffenbarger, 137 F.4th, at 569 (6th Cir. 2025) (citing

Palmer v. United States, 168 F.3d 1310 (Fed. Cir.

1999). But even Palmer made clear that back pay and

retroactive relief “would be available in instances

where Congress “provide[d] a separate basis for relief

… independent of a money-mandated claim.” Id. Here,

RFRA is just that sort of “separate basis for relief …

independent of a money-mandated claim.” Again,

RFRA includes the statutory entitlement to

“appropriate relief against a government.” 42 U.S.C.

2000bb-1(c). And this Court has explained that

“appropriate relief” is “open-ended” on its face, and

“inherently context dependent.” Tanzin v. Tanvir, 592

U.S. 43, 49 (2020). And the context here for

appropriate relief is to permit equitable restitution of

back pay and retirement points. Completely ignoring

this argument regarding “appropriate relief” allowed

under RFRA, the Sixth Circuit instead relied on

Palmer to mischaracterize RFRA as a statutory

enactment that only required “the government’s

forbearance from interference with ‘a person’s exercise

of religion,’” nothing else. Poffenbarger, 137 F.4th at

568. That is reversible error.

Simply put, 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. See Kolstad v.

ADA, 527 U.S. 526 (1999); West v. Gibson, 527 U.S.

212 (1999). And again, 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 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 that 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, federal courts can order such relief. See Kolstad

v. 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 this reservist

Plaintiff in a no pay and no points status, and it is

entirely within the authority of courts 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 Rehabilitation & 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

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,” and 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)).

Here, equitable relief for Plaintiff’s unremedied

harm is the very relief Plaintiff sought in his amended

complaint: to “restore to [Plaintiff] and correct his

military records to restore any lost credit for points or

pay he is due and were lost due to Defendants’ illegal

actions, to provide such other equitable relief as may

be appropriate at the time, and award him damages.”

[Am. Compl., Doc. 38 at page 12, ¶ D, PageID#1326.]

Plaintiff’s declaration reveals that he lost retirement

points and drill pay, from January 2022 through June

2022, which have not been restored to him and,

without a court order, will never be restored to him.

[Dec. Poffenbarger, Doc. 59-1, PageID#1593-1595.] 5

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).

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

Plaintiff’s 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.

Defendants submitted an unsigned (and therefore invalid)

declaration, Doc. 58-1, PageID#1577-1579. That invalid

declaration then was used by Defendants to argue that Plaintiff

did not lose out on pay and points simply because he had more

points from June 2021 through June 2022 (the calendar year in

which the deprivation of points and pay occurred) than he did in

other years. In making this disingenuous argument, Defendants

omitted the highly relevant fact that Plaintiff obtained higher

points because of his six months of active-duty service that year,

which he earned prior to the discriminatory actions at issue in

this case, all while ignoring no pay or points were awarded for

the remaining six months of that year, from January 2022

through June 2022.

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.

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

(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).

II. Judicial estoppel forecloses Respondents’

arguments

against

back

pay

and

restitutionary relief

This case was dismissed, and dismissal was

affirmed, based on Respondent’s claim that equitable

back pay and restitutionary relief was unavailable to

Plaintiff. 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 a final

judgment. And the district court withheld such relief

on that very basis, holding that Plaintiff could receive

restitution in the form of back pay and back

retirement points in a final judgment. Poffenbarger,

588 F. Supp. 3d 770, 796-797.

“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,

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 also 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”); 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 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 one of those elements is met here.

Respondents,

opposing

preliminary

injunctive relief, argued below as follows:

It is unclear whether Plaintiff alleges that

involuntary reassignment to the Individual Ready

Reserve and loss of eligibility for health care

constitutes irreparable harm. See Pl.’s Notice 2,

Doc. No. 11, PageID 284. 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. 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. 22, PageID#369] (emphasis added).

If true, that would have been grounds for a finding

of irreparable harm in February, 2022, at a time that

would have prevented the unremedied harm at issue

from continuing until July, 2022. See Ky. v. Biden, 23

F.4th 585, 611, fn.19 (6th Cir. 2022) (explaining that

where immunity likely barred money damages, the

losses would be irreparable); Kentucky v. Biden, 57

F.4th 545, 556 (6th Cir. 2023) (“immunity typically

makes monetary losses like these irreparable”).

As noted, a preliminary injunction issued in favor

of Plaintiff in February of 2022 that prevented any

further adverse actions by Defendants, but did not

restore Plaintiff to pay and points status. See

Poffenbarger, 588 F. Supp. 3d 770, 796-797. However,

because Defendants argued, and the district court

accepted, that Plaintiff was able to receive restitution

in the form of back pay and back retirement points in

a final judgment, and thus that sort of harm was not

irreparable, the preliminary injunction relief did not

include restoration of lost pay and lost points. Id. at

796-797; Govt. Opposition to Preliminary Injunction,

at Doc. 22, PageID#369.

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 resulted in depriving service-members 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. 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

protections 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 Petitioner’s last hope. And here, the Government

comes to this Court with unclean hands, having

succeeded in executing an about face maneuver with

respect 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

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

CHRISTOPHER D. WIEST

CHRIS WIEST ATTORNEY

AT LAW, PLLC

ZACHARY GOTTESMAN

50 East Rivercenter Blvd., 9200 Montgomery Road,

Suite 1280

Bldg E, Ste. 18B

Covington, KY 41011

Cincinnati, OH 45242

OCTOBER 9, 2025

APPENDIX

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 . . . . . . . 12a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO, WESTERN

DI V I S ION – C I NC I N NA T I , F I L E D

MARCH 18, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14a

A PPENDI X D — J U DGMENT OF THE

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF OHIO,

WESTERN DIVISION – CINCINNATI,

FILED MARCH 18, 2024 . . . . . . . . . . . . . . . . . . . . 24a

Appendix

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. 24-3417

MICHAEL POFFENBARGER, ON BEHALF OF

HIMSELF AND OTHERS SIMILARLY SITUATED,

Plaintiff-Appellant,

FRANK KENDALL, III, IN HIS OFFICIAL

CAPACITY AS SECRETARY OF THE AIR FORCE;

JOHN D. DEGOES, IN HIS OFFICIAL CAPACITY

AS ACTING SURGEON GENERAL OF THE AIR

FORCE; JOHN P. HEALY, IN HIS OFFICIAL

CAPACITY AS COMMANDER, AIR FORCE

RESERVE COMMAND; MAJOR GENERAL D.

SCOTT DURHAM, IN HIS OFFICIAL CAPACITY AS

COMMANDER, 4TH AIR FORCE; LIEUTENANT

COLONEL MICHAEL R. RUBELING, IN HIS

OFFICIAL CAPACITY AS COMMANDER, 445TH

OPERATIONS SUPPORT SQUADRON; COLONEL

DOUGLAS A. PERRY, IN HIS OFFICIAL CAPACITY

AS COMMANDER, 445TH AIRLIFT WING;

UNITED STATES OF AMERICA,

Defendants-Appellees.

Appendix A

Appeal from the United States District Court for the

Southern District of Ohio at Dayton.

No. 3:22-cv-00001—Matthew W. McFarland,

District Judge.

Decided and Filed: May 12, 2025

Before: KETHLEDGE, BUSH, and MURPHY, Circuit

Judges.

OPINION

KETHLEDGE, Circuit Judge. Michael Poffenbarger,

a First Lieutenant in the Air Force Reserve, brought this

suit alleging that the Air Force’s COVID-19 mandate,

as applied to him, violated the Religious Freedom

Restoration Act (RFRA) and the First Amendment. The

Air Force later rescinded that mandate, and the district

court dismissed the case as moot. We affirm the dismissal,

though on different grounds.

In August 2021, at the direction of President Biden,

Secretary of Defense Lloyd Austin mandated that all

members of the armed forces be vaccinated against

COVID-19. The Secretary of the Air Force (then Frank

Kendall, the lead defendant when this suit was filed)

accordingly mandated that all the Air Force’s active-duty

service members and reservists (including members of

the Air Guard) be vaccinated. Under the Department of

the Air Force’s guidelines, service members could seek

exemptions from the mandate on medical, administrative,

Appendix A

or religious grounds. In the months that followed,

the Department granted medical and administrative

exemptions “relatively freely”; but as of September 2022,

on the record before us then, the number of exemptions the

Department had granted on religious grounds stood “at

zero.” Doster v. Kendall, 48 F.4th 608, 610 (6th Cir. 2022).

Meanwhile, service members who refused the vaccination

without an exemption were subject to various punitive

measures—including separation from the Air Force (i.e.,

termination).

Poffenbarger sought a religious exemption, which

the Air Force denied. But he refused the vaccination

nonetheless. In response, the Air Force gave him a letter

of reprimand and placed him on “No Pay/No Points

status”—an inactive status on which he could not attend

drills and thus could not earn pay and retirement points.

Poffenbarger soon brought this suit, claiming that the

vaccine mandate as applied to him violated RFRA and

the First Amendment. As relief, he sought a declaration

to that effect, an injunction barring the defendants from

enforcing the mandate against him, and “damages.” More

to the point here, Poffenbarger also sought “injunctive

relief” that would require the defendants to “restore

any lost credit for points or pay” that he had “lost due

to Defendants’ illegal actions.” Am. Compl., R. 38. The

district court thereafter entered a preliminary injunction

barring the Air Force from taking further punitive action

against Poffenbarger during the pendency of his case.

Meanwhile, in the same district court, the same

attorneys filed a companion case challenging the mandate

on the same grounds. See Doster v. Kendall, 596 F. Supp.

Appendix A

3d 995 (S.D. Ohio 2022). In that case, the district court

certified a class of affected Air Force service members

and enjoined the Department from taking further punitive

action against them during the pendency of that case. See

Doster v. Kendall, No. 1:22-CV-84, 2022 U.S. Dist. LEXIS

137068, 2022 WL 2974733 (S.D. Ohio July 27, 2022). In

September 2022, we denied the Department’s motion

for an emergency stay of the district court’s preliminary

injunctions in Doster. See Doster, 48 F.4th at 610. Two

months later, we affirmed those injunctions on the merits.

Doster v. Kendall, 54 F.4th 398 (6th Cir. 2022).

The following month, however, Congress enacted

legislation that directed the Secretary of Defense to

rescind the military’s COVID-19 vaccine mandate. Pub.

L. No. 117-263, § 525. The Secretary complied with that

directive on January 10, 2023, and the Air Force followed

suit. As a result, the Supreme Court vacated our decision

in Doster on mootness grounds. See 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)). We remanded the case to the district court

with instructions to vacate its preliminary injunctions on

those same grounds.

Thereafter, the district court ordered briefing as to

whether this case as a whole was moot. See generally

Resurrection Sch. v. Hertel, 35 F.4th 524, 528 (6th Cir.

2022) (en banc). The court held it was and dismissed it.

This appeal followed.

Appendix A

II.

We review the district court’s dismissal de novo.

Hanrahan v. Mohr, 905 F.3d 947, 960 (6th Cir. 2018).

Under Article III, the “federal courts are without

power to decide questions that cannot affect the rights of

litigants in the case before them.” DeFunis v. Odegaard,

416 U.S. 312, 316, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974)

(per curiam) (citation omitted). “Thus, when a case at first

presents a question concretely affecting the rights of the

parties, but—as a result of events during the pendency

of the litigation—the court’s decision would lack any

practical effect, the case is moot.” Ohio v. EPA, 969 F.3d

306, 308 (6th Cir. 2020).

Poffenbarger argues his case is not moot because

he has not received the pay and retirement points for

the drill weekends—specifically, $4,346.16 in drill pay

and 24 retirement points—that he missed when the Air

Force assigned him to inactive status (after his refusal to

take the vaccine). And here—subject to the government’s

defense of sovereign immunity—we have power to enter

an order granting him that relief. Hence his case is not

moot. See Univ. of Texas v. Camenisch, 451 U.S. 390, 394,

101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981).

Appendix A

The government argues that Poffenbarger’s claim

for drill pay and retirement points is barred by federal

sovereign immunity. That claim was asserted against these

defendants—the Secretary of the Air Force and several

Air Force officers—solely in their official capacities. See

Am. Compl., R.38 ¶¶ 4, 28. Federal officials in their official

capacity fall within the government’s sovereign immunity.

See Dugan v. Rank, 372 U.S. 609, 621-22, 83 S. Ct. 999,

10 L. Ed. 2d 15 (1963); see also Tanzin v. Tanvir, 592 U.S.

43, 51-52, 141 S. Ct. 486, 208 L. Ed. 2d 295 (2020). The

question, then, is whether the United States has waived

its immunity as to this claim. See Collin v. Comm’r of Soc.

Sec., 881 F.3d 427, 429 (6th Cir. 2018).

A “waiver of sovereign immunity must be unequivocally

expressed in statutory text.” F.A.A. v. Cooper, 566 U.S.

284, 290, 132 S. Ct. 1441, 182 L. Ed. 2d 497 (2012) (internal

quotation marks omitted). The Religious Freedom

Restoration Act has waived the federal government’s

immunity to some extent; in this appeal, as in Cooper,

“the question at issue concerns the scope of that waiver.”

Id. at 291. RFRA’s waiver provides in relevant part that

a “person whose religious exercise has been burdened

in violation of” the Act may “obtain appropriate relief

against a government.” 42 U.S.C. § 2000bb-1(c). Here,

these defendants, in their official capacities, fall within the

Act’s definition of a “government.” See Tanzin, 592 U.S. at

47. Whether the United States has waived its immunity as

to Poffenbarger’s claim for lost drill pay and retirement

points, therefore, depends on whether that relief, against

Appendix A

these officials, is “appropriate relief” as the Act uses that

term.

We begin (and later end) with what that term does not

include—namely, claims against the federal government

for money damages. In Sossamon v. Texas, the Supreme

Court held that the phrase “appropriate relief” as

used in a related statute (the Religious Land Use and

Institutionalized Persons Act) did not “unequivocally

express[]” an intent to waive the States’ “sovereign

immunity to suits for damages.” 563 U.S. 277, 288, 131

S. Ct. 1651, 179 L. Ed. 2d 700 (2011). Meanwhile, every

circuit court to have reached the issue (six of them, at

last count) has held that the same phrase in “RFRA does

not authorize damages suits against the United States[.]”

Morgan v. Fed. Bureau of Prisons, 129 F.4th 1043, 1050-51

(7th Cir. 2025) (collecting cases). We agree: “appropriate

relief” as used in RFRA is too vague a phrase to waive

unequivocally the federal government’s immunity from

damages suits.

Poffenbarger’s claim for lost drill pay and retirement

points is therefore barred if that relief would amount to

money damages. By contrast, if that relief would arise

in equity, it could be “appropriate relief.” See Sossamon,

563 U.S. at 285. The aims of the two kinds of relief are

different. As Joseph Story observed: “Courts of Equity

will interfere by way of injunction to prevent wrongs;

whereas Courts of Common Law can grant redress only,

when the wrong is done.” Story, 1 Commentaries on

Equity Jurisprudence § 30 (1836). Thus, equity seeks

to prevent a legal wrong, or to change the status quo

Appendix A

so that what was wrong becomes right; whereas legal

damages leave the wrong in place but afford the plaintiff

compensation for it. See Bowen v. Massachusetts, 487 U.S.

879, 910, 108 S. Ct. 2722, 101 L. Ed. 2d 749 (1988).

That a claim seeks an award of money does not

necessarily mean it is a claim for money damages. To

the contrary, the “Supreme Court has ‘long recognized

the distinction between an action at law for damages—

which are intended to provide a victim with monetary

compensation for an injury to his person, property, or

reputation—and an equitable action for specific relief—

which may include an order for the recovery of specific

property or monies.’” Collin, 881 F.3d at 429 (quoting

Bowen, 487 U.S. at 893 (cleaned up)). In Bowen—over a

strong dissent from Justice Scalia—the Supreme Court

cited Judge Bork for the proposition that “[d]amages are

given to the plaintiff to substitute for a suffered loss,

whereas specific remedies ‘are not substitute remedies

at all, but attempt to give the plaintiff the very thing to

which he was entitled.’” 487 U.S. at 895 (quoting Md. Dep’t

of Hum. Res. v. Dep’t of Health & Hum. Servs., 763 F.2d

1441, 1446, 246 U.S. App. D.C. 180 (D.C. Cir. 1985) (quoting

in turn D. Dobbs, Handbook on the Law of Remedies 135

(1973))).

As we noted in Collin, however, “[t]his distinction is

harder to make when, as here, the very thing to which the

plaintiff says [he] is entitled is the payment of money.” 881

F.3d at 429. Money is usually fungible, just as commodities

are, and thus is hard to characterize as a distinct thing—a

res—to which a plaintiff is entitled. See Bowen, 487 U.S.

Appendix A

at 919 n.3 (Scalia, J., dissenting). Moreover, an award of

money damages is usually adequate compensation for a

defendant’s failure to pay money, which usually forecloses

equitable relief. See id. at 917. But the Supreme Court has

held 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. In Bowen,

for example, the Court explained:

The State’s suit to enforce § 1396b(a) of

the Medicaid Act, which provides that the

Secretary [of Health and Human Services]

‘shall pay’ certain amounts for appropriate

Medicaid services, is not a suit seeking money

in compensation for the damage sustained by

the failure of the Federal Government to pay as

mandated; rather, it is a suit seeking to enforce

the statutory mandate itself, which happens to

be one for the payment of money.

Id. at 900 (second emphasis added).

Likewise, in Judge Bork’s case, Maryland was

“seeking funds to which a statute allegedly entitle[d]

it, rather than money in compensation for the losses”

that Maryland would have suffered “by virtue of the

withholding of those funds.” Id. at 901 (quoting Md. Dep’t

of Hum. Res., 763 F.2d at 1446). In both cases, therefore,

the failure to pay the withheld sum was itself the legal

wrong.

10a

Appendix A

Here, by contrast, “the statutory mandate is different

in kind.” Collin, 881 F.3d at 429. Poffenbarger seeks to

enforce RFRA, which mandates not the payment of money

but the government’s forbearance from interference with

“a person’s exercise of religion[.]” 42 U.S.C. § 2000bb-1(a).

Nor were the drill pay or retirement points anything—

much less “the very thing”—to which Poffenbarger “was

entitled” under RFRA. Bowen, 487 U.S. at 895 (citation

omitted). Indeed, as a reservist, under the “military pay

statutes,” he had no entitlement to any compensation

for drills that he did not “actually attend[.]” Palmer v.

United States, 168 F.3d 1310, 1313-14 (Fed. Cir. 1999).

That was true even if (as Poffenbarger alleges here) he

was “wrongfully removed” from “part-time reserve duty

in a pay billet.” Id. at 1314. Hence the relief he seeks would

not enforce a statutory mandate that “happens to be one

for the payment of money.” Bowen, 487 U.S. at 900.

Instead, Poffenbarger’s statutory entitlement (subject

to a narrow exception) was to practice his religious faith

without substantial interference from the government.

See 42 U.S.C. § 2000bb-1(a). The alleged legal wrong

in this case was that the Department of the Air Force

substantially burdened his religious practice nonetheless.

He seeks drill pay and retirement points not to prevent

or undo that wrong, but as compensation for what he

“lost due to Defendants’ illegal actions.” Am. Compl., R.

38. The relief he seeks now, therefore, is retrospective

compensation for a previous legal wrong—which is to say it

is money damages. See Collin, 881 F.3d at 429. That is true

for the retirement points too: those would be retrospective

compensatory relief, without any concomitant injunction

11a

Appendix A

that the government pay Poffenbarger some additional

specified amount during his retirement. (Instead

the points would impose their own obligation on the

government under a different statutory regime.)

Poffenbarger’s arguments to the contrary are without

merit. For reasons that Palmer itself makes clear,

Poffenbarger’s lack of entitlement under the military pay

statutes (as a reservist) makes his case distinguishable

from cases (like Schelske v. Austin, 2023 U.S. Dist.

LEXIS 163101, 2023 WL 5986462 (N.D. Tex. Sept. 14,

2023)) involving active-duty service members. 168 F.3d

at 1313-14. Moreover, contrary to his contention here, “a

government official or attorney cannot waive the sovereign

immunity of the federal government[.]” Gaetano v.

United States, 994 F.3d 501, 508 (6th Cir. 2021). Nor does

judicial estoppel apply, since the district court rejected

the government’s prior argument that Poffenbarger says

conflicts with its argument now. See New Hampshire v.

Maine, 532 U.S. 742, 750, 121 S. Ct. 1808, 149 L. Ed. 2d 968

(2001). The relief that Poffenbarger now seeks is therefore

relief to which the government remains immune.

The district court’s judgment is affirmed.

12a

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. 24-3417

MICHAEL POFFENBARGER, ON BEHALF OF

HIMSELF AND OTHERS SIMILARLY SITUATED,

Plaintiff-Appellant,

FRANK KENDALL, III, IN HIS OFFICIAL

CAPACITY AS SECRETARY OF THE AIR FORCE;

JOHN D. DEGOES, IN HIS OFFICIAL CAPACITY

AS ACTING SURGEON GENERAL OF THE AIR

FORCE; JOHN P. HEALY, IN HIS OFFICIAL

CAPACITY AS COMMANDER, AIR FORCE

RESERVE COMMAND; MAJOR GENERAL D.

SCOTT DURHAM, IN HIS OFFICIAL CAPACITY AS

COMMANDER, 4TH AIR FORCE; LIEUTENANT

COLONEL MICHAEL R. RUBELING, IN HIS

OFFICIAL CAPACITY AS COMMANDER, 445TH

OPERATIONS SUPPORT SQUADRON; COLONEL

DOUGLAS A. PERRY, IN HIS OFFICIAL CAPACITY

AS COMMANDER, 445TH AIRLIFT WING;

UNITED STATES OF AMERICA,

Defendants-Appellees.

13a

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 Dayton.

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 dismissal of the case is AFFIRMED on different

grounds than was reasoned by the district court.

ENTERED BY ORDER OF THE COURT

/s/ Kelly L. Stephens

Kelly L. Stephens, Clerk

14a

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. 3:22-cv-1

Judge Matthew W. McFarland

MICHAEL POFFENBARGER,

Plaintiff,

HON. FRANK KENDALL, et al.,

Defendants.

ORDER SUA SPONTE DISMISSING CASE

AS MOOT

This matter is before the Court sua sponte to consider

whether the case is moot following the enactment of the

James M. Inhofe National Defense Authorization Act

(“NDAA”) for Fiscal Year 2023, Pub. L. No. 117-263,

136 Stat. 2395 (2022), and the Supreme Court’s order in

Kendall, Sec’y of the Air Force v. Doster, 601 U.S. ___, 144

S. Ct. 481, 217 L. Ed. 2d 248, 2023 U.S. LEXIS 4827 (2023).

The parties have briefed the matter. (See Docs. 58, 59.)

For the reasons discussed below, the Court concludes that

15a

Appendix C

the matter is moot and DISMISSES the case WITHOUT

PREJUDICE.

FACTS & PROCEDURAL HISTORY

Plaintiff Michael Poffenbarger is a First Lieutenant

in the Air Force Reserve who sought, and was refused,

a religious exemption to the Department of Defense’s

requirement that its armed servicemembers be vaccinated

against COVID-19. (Am. Compl., Doc. 38, ¶¶ 8-15.)

Though Plaintiff did not receive an exemption to the

policy, he refused to get the vaccine. (Id.) Because of

his noncompliance with the policy, Plaintiff was placed

on “No Pay/No Points” status, which excused him from

participating in reserve training and drills. (Smith Decl.,

Doc. 15, Pg. ID 310.)

Plaintiff brought this Complaint against several

Defendants in the Air Force chain of command, arguing

that the vaccine requirement and subsequent disciplinary

action violated his rights under the Religious Freedom

Restoration Act (“RFRA”) and the First Amendment’s

Free Exercise Clause. (See Am. Compl., Doc. 38, Pg. ID

1324-25.) He sought declaratory judgment and injunctive

relief to prevent further disciplinary action, remove prior

disciplinary measures, and restore his service record

to account for lost pay and retirement points. (Id. at Pg.

ID 1326.) On February 28, 2022, this Court entered a

preliminary injunction preventing Defendants from taking

further disciplinary action. (Preliminary Injunction, Doc.

32.) The Order did not rescind Defendants’ prior action.

(See id.)

16a

Appendix C

On July 27, 2022, this Court entered a nationwide

preliminary injunction in Doster v. Kendall that restored

reservists in the class, including Plaintiff, to pay and

points status. See Doster v. Kendall, No. 1:22-CV-84,

2022 U.S. Dist. LEXIS 137068, 2022 WL 2974733, at

*1-2 (S.D. Ohio, July 27, 2022). This Court then stayed

this case pending resolution of the appeal in Doster.

(Stay Order, Doc. 53.) The Court of Appeals for the Sixth

Circuit affirmed this Court’s preliminary injunction in

Doster. Doster v. Kendall, 54 F.4th 398, 442 (6th Cir.

2022), vacated as moot, Kendall, Sec’y of the Air Force

v. Doster, 601 U.S. ___, 144 S. Ct. 481, 217 L. Ed 2d 248,

2023 U.S. LEXIS 4827 (2023).

In December 2022, Congress enacted the James M.

Inhofe National Defense Authorization Act for Fiscal Year

2023. Pub. L. No. 117-263, § 525. Under this legislation,

on January 10, 2023, the Secretary of Defense rescinded

the vaccine mandate and adverse actions for those

servicemembers who sought exemptions on religious

grounds. See id. Following, the Supreme Court vacated

the Sixth Circuit’s judgment in Doster and ordered the

Sixth Circuit to instruct this Court to vacate the Doster

preliminary injunctions as moot. Doster, 601 U.S. ___,

2023 U.S. LEXIS 4827, at *1. In the meantime, this

Court lifted the stay in this case and directed the parties

to brief whether this case was moot after the Supreme

Court’s order and the enactment of the NDAA. (01/23/2024

Notation Order.)

17a

Appendix C

LAW & ANALYSIS

The question before the Court is whether the case is

moot. Mootness implicates a federal court’s subject-matter

jurisdiction, Mokdad v. Sessions, 876 F.3d 167, 169-170

(6th Cir. 2017), and the Court may consider whether it

has subject-matter jurisdiction at any time, Fed. R. Civ.

P. 12(h)(3). Federal courts may only adjudicate “actual”

controversies, so a case becomes moot “when the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Already, LLC v.

Nike, Inc., 568 U.S. 85, 91, 133 S. Ct. 721, 184 L. Ed. 2d

553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481,

102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982)). “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)).

Plaintiff concedes that much of his case is moot

following the Supreme Court’s order. (See Plaintiff’s Brief,

Doc. 59, Pg. ID 1583-84.) But, he contends that he is still

entitled to backpay and retirement points for the drill

weekends from January to June, 2022 that Defendants

excluded him from. (Id.) Defendants argue that the case

is nevertheless moot because Plaintiff cannot recover

backpay and retirement credit and sovereign immunity

18a

Appendix C

bars relief. (Def. Brief, Doc. 58, Pg. ID 1568-69.) Upon

review, the Court finds that Defendants’ arguments have

merit.

This Court Cannot Award Backpay

Plaintiff argues that Defendants’ actions cost him

$4,346.16 in lost drill pay. (Plaintiff’s Brief, Doc. 59, Pg.

ID 1583.) Plaintiff contends that this injury keeps the case

alive because he is entitled to backpay. (Id.) That said, the

Court cannot grant backpay as relief, so this argument

fails to show that there is 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). This is

true even if a reservist were wrongfully prevented from

attending the training or drill. Id. Therefore, Plaintiff

cannot recover backpay for those drills that he missed,

even if his exclusion was unlawful.

In response, Plaintiff points 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 backpay in connection with

claims for reinstatement to active duty because backpay

was “integral” to restoring prospective class members

19a

Appendix C

to their former status before separation. 2023 U.S. Dist.

LEXIS 163101, [WL] at *31-32. That holding does not

apply here. The issue in Schelske involved separated

active-duty servicemembers who sought reinstatement

to active duty and as well as backpay that they would

have earned but for their unlawful separation. Id. Here,

Plaintiff did not attend drills while serving as a reservist.

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 v. United

States, 167 Fed. Cl. 62, 67 (2023) (quoting Palmer, 168 F.3d

at 1314-15 (Fed. Cir. 1999)).

Plaintiff further contends that the Court can grant

this relief because it is equitable. (Plaintiff’s Brief, Doc.

59, Pg. ID 1585, 1588). Despite this argument, Plaintiff

still cannot receive backpay for the drills between January

and June 2022 because he did not participate in them.

See Palmer, 168 F.3d at 1314. The Court cannot grant

backpay as relief, so it cannot be used to avoid mootness.

See Church of Scientology of Cal., 506 U.S. at 12.

II. This Court Cannot Award Retirement Points

Plaintiff also seeks 24 retirement points that he did

not receive because Defendants placed him on “No points/

No pay” status, which he maintains is a live issue because

he will draw less retirement pay. (Plaintiff’s Brief, Doc. 5,

Pg. ID 1583.) But, as detailed below, this similarly fails to

demonstrate a live controversy in this case.

20a

Appendix C

Plaintiff Cannot Receive Retirement Points

for Unattended Drills

First, the Court concludes that it cannot award

retirement points for similar reasons as to why it cannot

award backpay, namely that it is not permitted by statute.

Reservists receive retirement pay based on the points

they accrue throughout their service. See 10 U.S.C.

§ 12733. They can accrue points, in part, by attending

drill sessions. See 10 U.S.C. § 12732(a)(2)(B). That said,

like pay, reservists only accrue retirement points for drills

they attend. Id. There is no statute or other authority

allowing reservists to receive credit for drills they did

not attend, so the Court concludes that the structure of

10 U.S.C. § 12732 and the Federal Circuit’s reasoning in

Palmer forecloses Plaintiff’s desired relief.

Sovereign Immunity Bars Relief

Alternatively, sovereign immunity bars the recovery

of retirement points in this case. Sovereign immunity

shields the federal government from suit, absent an

explicit statutory waiver. Gaetano v. United States, 994

F.3d 501, 506 (6th Cir. 2021). This immunity extends to

federal officials sued in their official capacities. MunizMuniz v. U.S. Border Patrol, 741 F.3d 668, 671 (6th Cir.

2013). Congress may only waive sovereign immunity

through clear statutory language. Dept. 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),

As a threshold matter, and despite Plaintiff ’s

argument to the contrary, the Court concludes that his

21a

Appendix C

request for retirement points is a claim for damages, not

an injunctive claim for equitable relief. (See Plaintiff’s

Brief, Doc. 59, Pg. ID 1585). Awarding these points has

the effect of increasing Plaintiff’s retirement pay, which

is similar to what this Court has previously concluded

“amount[s] to an award of monetary damages.” DeGroat v.

Townsend, 495 F. Supp. 2d 845, 852 (S.D. Ohio 2007) (Air

Force officer’s request for injunction to credit for service

time was ultimately one for monetary damages.); see also

Sosa v. Sec’y, Dep’t of Def., 47 F.App’x 350, 351-52 (6th

Cir. 2002) (Army veteran’s request for a correction of his

records to reflect a medical discharge was ultimately one

for money damages.). Plaintiff seeks the retirement points

in order to increase his benefits from the government,

so the Court cannot remedy this harm by injunction.

DeGroat, 495 F. Supp. 2d at 853.

The Court next turns to whether sovereign immunity

bars relief. Plaintiff contends that Defendants waived the

immunity argument by not raising it before and that he

can recover damages against Defendants under RFRA.

(Plaintiff’s Brief, Doc. 59, Pg. ID 1586, 1588-89). Neither

argument sways the Court.

Government counsel cannot waive sovereign immunity

as a defense, and the Court can address the applicability of

sovereign immunity at any stage of the litigation. Gaetano,

994 F.3d at 508.

A lso, Plaintiff cannot recover damages from

Defendants because he only sued them in their official

capacities. Plaintiff argues that the Supreme Court’s

recent decision in Tanzin v. Tanvir, 592 U.S. 43, 49, 141

22a

Appendix C

S. Ct. 486, 208 L. Ed. 2d 295 (2020) provides that RFRA

waives sovereign immunity in this instance. (Plaintiff’s

Brief, Doc. 59, Pg. ID 1586). RFRA enables a person

whose religious exercise has been unlawfully burdened

by a government to “obtain appropriate relief.” 42 U.S.C.

§ 2000bb-1(c). The Supreme Court held in Tanzin that,

based on the “appropriate relief” language, plaintiffs could

bring damages claims under RFRA against government

officials in their individual capacities. Tanzin, 592 U.S.

at 50-51. But, the Court did not extend this holding to

RFRA claims against government officials in their official

capacities. See id. In fact, the Court explicitly differentiated

Tanzin from Sossaman v. Texas, wherein the Court held

that the identical “appropriate relief” language in the

Religious Land Use and Institutionalized Persons Act did

not waive sovereign immunity for damages claims against

government actors in their official capacities. See id. at

51-52 (citing Sossamon v. Texas, 563 U.S. 277, 284-86,

131 S. Ct. 1651, 179 L. Ed. 2d 700 (2011)). In sum, Tanzin

did not hold that RFRA waives sovereign immunity to

suits for damages against government officials in their

official capacities, and Plaintiff has not provided any other

authority to the contrary. Accordingly, Plaintiff cannot

recover damages from Defendants.

Plaintiff ’s claim for retirement points does not

maintain a live case that can be remedied. The structure

of 10 U.S.C. § 12732 and the reasoning in Palmer foreclose

relief, and in the alternative, sovereign immunity bars

his claim.

***

23a

Appendix C

This Court cannot award backpay and retirement

points to Plaintiff. In turn, the Court cannot “effectuate

relief” that would “make a difference to the legal interests

of the parties.” Hanrahan, 905 F.3d at 960; Church of

Scientology of Cal., 506 U.S. at 12. Thus, this case is now

moot.

CONCLUSION

Accordingly, the Court sua sponte DISMISSES

the case WITHOUT PREJUDICE. The matter is

TERMINATED from this Court’s docket.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

By:

/s/ Matthew W. McFarland

JUDGE MATTHEW W. McFARLAND

24a

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. 3:22-cv-1

Judge Matthew W. McFarland

MICHAEL POFFENBARGER,

Plaintiff,

HON. FRANK KENDALL, 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.

25a

Appendix D

IT IS ORDERED AND ADJUDGED that the Court sua

sponte DISMISSES the case WITHOUT PREJUDICE

this matter is TERMINATED from this Court’s docket.

Dated: March 18, 2024.

Richard W. Nagel, Clerk of Court

By: /s/ Kellie A. Fields

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.