The Department of Defense has filed a motion to block a June 2 court order that required it to allow recruits with asymptomatic HIV to enlist or commission into the U.S. military.
Attorneys for the Pentagon filed a motion Wednesday asking the U.S. Court of Appeals for the Fourth Circuit to reconsider its Tuesday decision in the case, Wilkins v. Hegseth, which lifted a stay on prohibiting HIV-positive people whose infections are controlled by medication and who otherwise qualify from serving while the case continues.
In 2024, Circuit Court Judge Leonie Brinkema of the Eastern District Court of Virginia ruled that with treatment advances — and previous court rulings that allowed infected personnel to continue serving and deploy — civilians with controlled levels of the virus should be allowed to serve.
The Defense Department appealed Brinkema’s decision, and last December, the Fourth Circuit implemented a stay to new enlistments while it considered the case. In February, a three-judge panel reversed Brinkema’s ruling, but in May, the appeals court announced the case would be heard by a full panel of judges. The court clarified that the decision also lifted the stay.
The announcement was met with swift response from attorneys for Defense Secretary Pete Hegseth who asked that the stay be reinstated.
“Applying the injunction universally would disrupt the military’s expansive recruitment and accession operations,” wrote Charles Scarborough, an appellate attorney for the Civil Division in the Department of Justice.
“With the panel’s grant of a stay, the military resumed applying its HIV- accession policies. Ceasing application of those policies … would impose an unnecessary and wholly improper burden on the military’s operations,” Scarborough added.
The case involves Isaiah Wilkins and two unnamed HIV-positive plaintiffs who sued the Defense Department after they sought to join or re-enlist but were prohibited based on their HIV status.
Wilkins was serving as a member of the Georgia Army National Guard who found out he was HIV-positive while trying to enlist in the Army Reserve.
The plaintiffs argued that antiviral medications kept their viral loads low or undetectable and affected U.S. service members had won similar suits and were allowed to stay in the military and deploy.
Defense Department and military services have long been concerned over transmission of HIV, the virus that can cause AIDS, from exposure to blood in a needle stick or responding to a traumatic injury.
In 2022, after Brinkema ruled that the military could not deny commissions to HIV-positive troops who sought to become officers nor could they be discharged, the Defense Department barred commanders involuntarily separating, restricting deployments or preventing commissions of affected troops.
The Defense Department stopped processing and training new recruits who were HIV-positive in January following the 4th Circuit’s decision to implement a stay.
Attorneys representing Wilkins and others said Tuesday they did not expect the stay to be lifted. They called it “great news.”
“On a regular basis, I hear from people with HIV who want to serve their country by joining the military, and that’s now again a viable option,” said Peter Perkowski in a statement issued by Minority Veterans of America, a group that has joined the plaintiffs.
The Defense Department disagreed.
“This Court should enter an order reinstituting the panel’s prior stay of the universal injunction on appeal in this case to the extent the injunction applies beyond the three individual plaintiffs in this suit,” Scarborough wrote in court documents.
From January 2020 through June 2025, the Defense Department screened roughly 7 million service members across the active, reserve and National Guard components. Of those, 1,463 were identified as HIV-positive, according to the Armed Forces Health Surveillance Division.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.
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