In my last post I said we would file an emergency motion in the First Circuit within days. It took longer than that, for reasons anyone who has ever assembled a 903-page appendix will understand. The motion is now filed.

This is the third post in a series. The first explained why Murphy’s order shuts down the federal vaccine apparatus. The second announced the appeal. This one covers what we actually asked for and what to expect.

The First Circuit opened up the the appeal for filing yesterday afternoon. This morning, Saturday April 4th, we filed our emergency motion.

Here are the five things we are seeking:

(a) Reverse the district court’s one-sentence denial of our intervention under Rule 24(a)(2);
(b) Grant us provisional party status pending appeal so we can participate in any stay proceedings;
(c) Set an expedited briefing schedule;
(d) Stay Murphy’s preliminary injunction; and
(e) Stay proceedings in the district court pending a determination of whether AAP has Article III standing on the developed record, a question Murphy acknowledged but never analyzed.

We asked the court to resolve the motion within twenty-one days of filing. That number isn’t arbitrary. If the First Circuit acts by late April, there is still time for an emergency application to the Supreme Court before October Term 2025 ends in late June.

The Core Argument

Readers of the prior posts know the problem. Murphy held that the CDC Director cannot act on the immunization schedule without prior origination by ACIP. He then stayed nearly every ACIP appointment, eliminating the quorum necessary for the committee to meet, deliberate, or vote.
The motion lays out why that reading has no basis in the statutory text.

The Federal Advisory Committee Act says advisory committees exist “solely for advisory functions” and that “determinations of policy shall be made solely by the President or an officer of the Federal Government.” The Supreme Court recognized the Director’s independent authority in Braidwood, footnote 4. CDC’s own policies confirm the Director “may adopt or reject” ACIP recommendations. No court has ever imposed an ACIP origination requirement. Murphy invented one.

The motion then walks through the evidence we presented and the district court ignored: the IOM’s findings that the cumulative schedule was never tested for safety, the enforcement infrastructure that converts recommendations into de facto mandates, the deaths of Andrea Shaw’s twins and Shanticia Nelson’s daughter under the schedule AAP wants restored, the FDA’s rejection of universal COVID-19 recommendation for healthy children, and AAP’s own members’ abandonment of the COVID vaccine in practice.

The district court acknowledged irreparable harm was “a close call” and reached its finding only by applying the sliding scale. It weighed AAP’s claimed harms against nothing, because no party presented countervailing evidence. Murphy’s own footnote 74 faulted the government for failing to respond. We would have responded. We tried. We got one sentence.

Why Intervention Matters

The government lost on every issue it contested. It argued the schedule changes were unreviewable and never presented the scientific basis for them (except as a last ditch effort in some filing at the last minute). It never challenged AAP’s claim that the schedule was “rigorously tested.” It never cited the IOM reports. It never identified a single child harmed under the prior schedule. DOJ’s own opposition to our intervention said it shared the “same ultimate goal” as our clients. That is the textbook concession of inadequate representation under Trbovich.

The motion makes a point about standing asymmetry that I think the First Circuit will notice. Murphy accepted organizational standing at the pleading stage for AAP’s Jane Does, whose claimed injuries include sleeplessness, tooth-grinding, and difficulty accessing pharmacies. He then denied intervention without a word of analysis to two mothers whose children are dead and two physicians whose licenses are gone.

On the New York Times Article

Yesterday the New York Times reported that HHS is publishing a charter renewal for ACIP in the Federal Register on Monday. The article frames this as HHS “laying the groundwork to revive” the committee in response to the litigation.

That’s not quite right.

ACIP’s charter expired on April 1, 2026. It was last renewed in May 2024 for a two-year period. Under FACA, if the charter isn’t renewed, the committee terminates. HHS had to renew it regardless of the litigation, regardless of Murphy’s order, and regardless of whether the government appeals. The Federal Register publication scheduled for Monday is routine FACA compliance with a deadline that had already arrived.

Whether HHS used the renewal to incorporate language from Aaron Siri’s petition is a separate question. But the renewal itself tells you nothing about whether the government plans to appeal, reconstitute ACIP with new members, or both. The article also notes that “The Health Department has not yet appealed the decision.” That part is accurate.

As of today, the government has not filed an appeal of Murphy’s order. Three weeks of silence from an administration that ordinarily appeals adverse rulings within days.

I don’t know what the government is going to do. Nobody outside HHS seems to know either. As I said in my earlier post, if Kennedy’s advisors are telling him that reconstituting ACIP solves the problem, they are wrong. Murphy didn’t just 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. And every future action Kennedy takes on vaccines that AAP doesn’t like will produce another amended complaint, another PI motion, or a contempt proceeding.

Murphy’s order is a permanent leash on federal vaccine policy. Reconstituting ACIP doesn’t take the leash off. Only an appellate court can do that. We’re not waiting to find out whether the government figures that out.

What Happens Next

The First Circuit will order AAP and the government to respond. We asked for a schedule that allows the court to resolve this within twenty-one days. Whether the court grants that timeline depends on how seriously it takes the structural problem we’ve identified.

I think it will take it seriously. This is the first case in which a district court has held that the CDC Director lacks independent authority to act on the immunization schedule. If that holding stands, the Director of every federal agency with a FACA advisory committee is on notice that voluntary consultation can be converted into a binding legal requirement by a district court.

We expect this case to reach the Supreme Court. When it gets there, somebody in that courtroom needs to present the evidence that no party below was willing or able to present. That is why we intervened. That is why we appealed. That is why we filed this motion. And that’s why we’ll be going to the Supremes if we don’t get the relief from the First Circuit.

On a mostly unrelated note, the Supreme Court’s order list comes out Monday. Kory v. Bonta, my cert petition on whether states can punish physicians for public speech about COVID treatment, is pending. If the Court acts on it, I’ll have more to say.

Here is our emergency motion to the First Circuit: EmergencyMotion

Tally HO!
Rick Jaffe, Esq.