Michael Poffenbarger, on behalf of himself and others similarly situated v. Frank Kendall, Iii

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0126p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL POFFENBARGER, on behalf of himself and
others similarly situated,
Plaintiff-Appellant,
v.
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.
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No. 24-3417
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.
_________________
COUNSEL
ON BRIEF: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC Covington,
Kentucky, Thomas B. Bruns, BRUNS CONNELL VOLLMAR & ARMSTRONG, Cincinnati,
Ohio, Aaron Siri, Elizabeth A. Brehm, Wendy Cox, SIRI & GLIMSTAD LLP, New York, New
York, Zachary Gottesman, GOTTESMAN LAW, Cincinnati, Ohio, for Appellant. Sarah Carroll,
Casen B. Ross, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.
>

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No. 24-3417 Poffenbarger v. Kendall, et al. Page 2
_________________
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Force later rescinded that mandate, and the district court dismissed the case as moot.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.
I.
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, 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

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“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. 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 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 (2023) (citing United States v. Munsingwear, Inc., 340 U.S. 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.
II.
A.
We review the district court’s dismissal de novo. Hanrahan v. Mohr, 905 F.3d 947, 960
(6th Cir. 2018).

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1.
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
(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 (1981).
2.
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 (1963); see also
Tanzin v. Tanvir, 592 U.S. 43, 51-52 (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 (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.”

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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 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 (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 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 (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

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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 (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. 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.
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

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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 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 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 (2001). The relief that Poffenbarger now seeks is

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therefore relief to which the government remains immune.
The district court’s judgment is affirmed.

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