Federal appeals court unexpectedly reverses itself, reviving challenge to Pentagon HIV policy

A federal appeals court has revived a major challenge to the U.S. military’s HIV enlistment ban, reopening a closely watched case that could determine whether people living with HIV can continue to be categorically barred from serving.

In an order issued May 18, the full U.S. Court of Appeals for the Fourth Circuit agreed to rehear Wilkins v. Hegseth, vacating a February ruling by a three-judge panel that upheld the Pentagon’s restrictions on recruits living with HIV. The rare move resets the case and gives advocates another opportunity to dismantle one of the military’s last remaining HIV-specific exclusions.

Oral arguments before all active judges on the Richmond-based court are tentatively scheduled for September.

The case centers on Isaiah Wilkins, a former Army reservist who was accepted into the U.S. Military Academy Preparatory School before being disenrolled after testing positive for HIV. Wilkins, alongside two additional plaintiffs and Minority Veterans of America, sued the Defense Department over policies that prevent people living with HIV from joining or rejoining military service.

Related: Two military members denied promotions for having HIV just won their lawsuit

“The decision came in February, and it felt like the end of the line,” Wilkins said Thursday in a statement. “But Peter and Scott saw one last chance, however remote, to turn things around — and we did. I couldn’t be more thrilled to still have a chance at serving my country.”

“The now-vacated panel opinion was an aberration,” attorney Peter Perkowski said Thursday in a statement. “Every other legal ruling across seven plus years of litigation has acknowledged that the evidentiary record demonstrates that people living with well-managed HIV can perform in any capacity as capably and safely as anyone else.”

Attorney Scott Schoettes, who argued the earlier appeal, said the rehearing “wipes the slate clean.”

“We are excited to argue this appeal to the full Court, and we are confident a fair hearing and decision that keeps faith with Roe will result in an affirmance of the district court’s ruling and injunction requiring the DoD to stop discriminating against qualified people living with HIV who simply want to serve their country,” Schoettes said.

Related: Court strikes down last barrier to military service by people living with HIV