Today, March 25th, I filed a notice of appeal in AAP v. Kennedy, No. 1:25-cv-11916-BEM (D. Mass.), on behalf of Children’s Health Defense, two physicians, and two mothers whose children died after receiving multiple simultaneous vaccines.

We’re appealing two things.

First, Judge Murphy’s February 27 denial of our motion to intervene as defendants and counterclaim plaintiffs. Murphy denied the motion in a one-sentence order with no analysis of any of the four factors under Rule 24(a)(2). No findings on timeliness, protectable interest, impairment, or adequacy of existing representation. We filed a 40-page memorandum, three declarations with seven appendices, a proposed answer with counterclaims, and a full opposition to the preliminary injunction. AAP filed a 22-page opposition. Murphy gave it one sentence.

Second, Murphy’s March 16 preliminary injunction order. As I explained in my last post, that order doesn’t just block the January 2026 schedule revision. It freezes the federal government’s ability to make vaccine policy at all. Murphy held that the CDC Director cannot act on the immunization schedule without ACIP origination, and then he stayed nearly every ACIP appointment, so ACIP can’t meet. The Director can’t act independently. ACIP can’t convene. There is no third option.
That’s the order we’re challenging.

The Emergency Motion

A conventional appeal takes eighteen months. This case will be over long before that. So we’re not taking a conventional appeal.

Within days, we will file an emergency motion in the First Circuit under FRAP 8 seeking expedited consideration and injunctive relief pending appeal. The motion will ask the First Circuit to reverse the intervention denial, grant us party status, and stay Murphy’s preliminary injunction.

The government has not yet filed an appeal or a motion to stay Murphy’s order. I have no idea when or whether it will. Murphy’s two holdings together mean that the CDC, with its thousands of employees, hundreds of PhDs, and scores of medical doctors across multiple divisions devoted to vaccines and infectious diseases, cannot act on vaccine policy. All of them have to wait for a dozen or so part-time Special Government Employees who meet three times a year. And Murphy stayed their appointments. So there is nobody to wait for.

If Kennedy’s advisors are telling him there’s nothing to do and that the solution is to just reappoint a new ACIP committee, they’re wrong. Murphy didn’t reject specific appointees. He held that the appointment process “in general, and thus the full committee, was tainted.” Any new appointments will need to satisfy whatever “balance” criteria Murphy has in mind, criteria the opinion never defines. Kennedy will need Judge Murphy’s permission before ACIP can reconvene.

And every future action Kennedy takes on vaccines that AAP doesn’t like will produce another amended complaint, another PI motion, and possibly a contempt proceeding. Murphy’s order is a permanent leash on federal vaccine policy. It cannot stand.

Where This Goes

One way or the other, we expect this case to reach the Supreme Court, and sooner than you might think.
I’ll post the emergency motion after its filed.

Rick Jaffe, Esq.