Court: Air Force immune from COVID-19 pay lawsuit

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The Air Force’s sovereign immunity precluded it from being held liable over its COVID-19 mandate, the 6th U.S. Circuit Court of Appeals has ruled.

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. Because he refused to receive a vaccination, the Air Force gave him a letter of reprimand and placed him on an inactive status in which he could not attend drills and thus could not earn pay and retirement points.

“The government argues that [the plaintiff’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. … Federal officials in their official capacity fall within the government’s sovereign immunity. … The question, then, is whether the United States has waived its immunity as to this claim,” Judge Raymond Michael Kethledge wrote for a three-judge panel.

“The Religious Freedom Restoration Act has waived the federal government’s immunity to some extent; in this appeal, as in [F.A.A. v. Cooper, 566 U.S. 284, 291 (2012)], ‘the question at issue concerns the scope of that waiver.’ … 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.’ … Whether the United States has waived its immunity as to [the plaintiff’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,” Kethledge stated.

“We begin (and later end) with what that term does not include — namely, claims against the federal government for money damages,” he added.

“[The plaintiff’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,’” Kethledge pointed out.

“[The plaintiff] 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.’ … The relief he seeks now, therefore, is retrospective compensation for a previous legal wrong — which is to say it is money damages. … That is true for the retirement points too: those would be retrospective compensatory relief, without any concomitant injunction that the government pay [the plaintiff’s] some additional specified amount during his retirement,” the panel found.

“The relief that [the plaintiff] now seeks is therefore relief to which the government remains immune,” the court concluded.

The eight-page decision is Poffenbarger v. Kendall.