A three-judge panel of the Richmond-based U.S. Court of Appeals for the Fourth Circuit ruled on Feb. 18 that Defense Department and Army regulations disqualifying HIV-positive individuals from enlisting do not violate the Constitution or the Administrative Procedure Act (APA). This ruling reversed a decision by US District Judge Leonie M. Brinkema, who issued a permanent injunction against the regulations in 2024.
Judge Brinkema’s opinion noted that the Fourth Circuit had ruled unconstitutional and in violation of the APA the Defense Department’s policies prohibiting the commissioning and retention of asymptomatic HIV-positive service members in two cases decided in 2022, in the course of which the courts rejected the same arguments that the Defense Department made in response to this lawsuit, which was brought by HIV-positive people who sought to enlist and are asymptomatic on medication. She analyzed anew the issues presented and came to the same conclusion: that refusing to enlist asymptomatic HIV-positive individuals was not a reasonable policy and thus fell under Fifth Amendment Due Process and the APA. Judge Brinkema was appointed to the district court by President Bill Clinton.
The Fourth Circuit panel deciding the Defense Department’s appeal, under the case name of Wilkins v. Hegseth, consists of Circuit Judge Paul Niemeyer, who was appointed by President George H.W. Bush, and Circuit Judges Julius Richardson and Allison Rushing, who were both appointed during his first term by President Donald J. Trump. Judge Niemeyer wrote the opinion for the panel.
The opinion faults Judge Brinkema for failing to apply the established policy of deference to military and congressional judgment and also disputes the relevance of the earlier Fourth Circuit decisions, asserting that enlistment presents different issues from commissioning and retention, even though the arguments made by the government in defending the regulations are similar.
To capsulize the panel’s ruling, it finds completely reasonable the Defense Department’s decision to bar enlistment of HIV-positive individuals based on four arguments. While acknowledging that under current medical conditions, it is possible for people living with HIV to maintain their health and be physically able to perform military duties, this ability comes at an expense to the Defense Department to supply drugs and perform the testing and evaluation necessary on a regular basis to determine whether medication needs to be adjusted.
Furthermore, although HIV is not casually contagious, it can be transmitted through blood exposure, and the military relies on being able to take blood from troops for emergency transfusion in battlefield situations. The court asserts that even people with “undetectable” HIV due to medication can transmit the virus through a blood transfusion, and that such transfusions are not uncommon, citing a statistic that more than 6,000 such transfusions took place during U.S. military actions in Afghanistan and Iraq. The court also accepts the arguments that a continuous supply of medication would be difficult to maintain during deployment to remote areas, and that bringing HIV-positive people into some countries with HIV- restrictive entry policies would raise diplomatic issues.
After pointing out that there is a list of medical conditions that are considered disqualifying for new recruits, the court asserts that it is reasonable to include HIV infection on the list in light of the military’s mission to maintain a force of healthy individuals who do not present unnecessary risks or expenses due to their medical condition and who can be deployed anywhere in the world on short notice.
Judge Niemeyer wrote a reasonably persuasive decision, determined to avoid the argument that his panel was bound by the earlier Fourth Circuit rulings to uphold Judge Brinkema’s injunction. But it is possible that the full Fourth Circuit will disagree. This all-Republican three-judge panel is not representative of the Circuit, which has nine Democratic appointees and six Republican appointees, so the plaintiffs may be able to obtain en banc (full circuit court) review. However, even if an en banc court votes to revive Judge Brinkema’s injunction, there looms the possibility of Supreme Court review with an ultra-conservative majority that may find Niemeyer’s ruling persuasive.
The case was argued for plaintiffs at the Fourth Circuit by Scott Schoettes, a former Lambda Legal Attorney now in private practice who was involved with representing the plaintiffs in the earlier military HIV cases decided by the Fourth Circuit, and Linda Coberly, an attorney at Winston & Strawn LLP. Several amicus briefs were filed in support of the plaintiffs, including arguments from Lambda Legal and the Northwestern Pritzker School of Law.
