I just filed a stay motion in American Academy of Pediatrics v. Kennedy, No. 1:25-cv-11916-BEM (D. Mass.), case, asking District Judge Brian motion to stay his Preliminary Injunction order he entered on March 16. I have no idea why the Government hadn’t already filed this motion. I did it because I initially sought the relief from the First Circuit, and they sent me back to the district court to ask there first, and so I did, today. Here is the Motion and Declaration: motion for stay, declaration

I represent Andrea Shaw and Shanticia Nelson, two mothers whose children died after receiving multiple simultaneous vaccines, Dr. Paul Thomas and Dr. Kenneth Stoller, two pediatricians whose medical licenses were revoked by state medical boards over their vaccine practices, and Children’s Health Defense. Our clients are the individuals and organization with the most direct interest in what ACIP recommends. We tried to intervene as defendants in February. Judge Murphy denied intervention in a one-sentence order. We filed an amicus brief. We are now appellants before the First Circuit on both the intervention denial and, under supplemental appellate jurisdiction, the preliminary injunction itself.

What the injunction did

The March 16 preliminary injunction has two operative components. It stayed the appointments of thirteen of the fifteen voting ACIP members, finding that nine lacked relevant expertise under the ACIP charter in effect at the time.

It also reversed the CDC’s January 6, 2026 changes to the childhood immunization schedule — the changes that moved six vaccines to shared clinical decision-making, removed COVID-19, and reduced the number of recommended disease categories from 17 to 11.

In combination, these two pieces of the injunction do something unusual. They do not merely block a single agency action. They stop the federal government from being in the business of making vaccine recommendations while this litigation continues. ACIP cannot function. The schedule reverts. The Secretary’s January 6 directive is reversed. And the litigation has no visible endpoint: AAP has filed five complaints in ten months, has filed the fourth amended complaint on February 17, and will almost certainly amend again if the renewed charter survives.

What changed on April 1

On April 1, 2026, the Secretary filed a renewed ACIP charter pursuant to FACA’s mandatory biennial renewal provision, 5 U.S.C. § 1013(d). The renewal was statutorily required. The notice was published in the Federal Register on April 6. 91 Fed. Reg. 17279.

The renewed charter does two things that matter here. First, it expands the listed expertise categories to include medicine, vaccines, immunization practices, immunology, toxicology, pediatric neurodevelopment, epidemiology, data science, statistical analysis, health economics, recovery from serious vaccine injuries, and public health. Under the renewed charter, every ACIP member Judge Murphy found unqualified or arguably qualified satisfies at least one listed field.

Second, the renewed charter directs ACIP to consider cumulative exposures to vaccines and vaccine components, to engage in re-analysis of vaccine safety and efficacy as gaps are identified, to evaluate variability in immune response for various populations, and to consider novel vaccine platforms such as mRNA vaccines. These are the substantive questions the Institute of Medicine told the CDC to study in 2002 and again in 2013. Twenty years passed. The studies were never done. The renewed charter directs ACIP to do them now.

The Secretary is using the chartering authority FACA expressly grants him.

What we filed

Our motion asks Judge Murphy to stay the preliminary injunction under Federal Rule of Civil Procedure 62(d). The motion is based on the April 1 charter renewal as an intervening change of circumstance that bears on both operative components of the injunction — the appointments stay and the schedule reversal — and that no party has presented to the district court.

The motion is narrow. We do not ask Judge Murphy to reconsider the record as it stood in March. We ask him to evaluate whether, given the renewed charter, a stay of the injunction is warranted under Nken v. Holder, 556 U.S. 418 (2009). Under the renewed charter, the factual predicate the district court relied upon no longer exists in the form it existed on March 16.

We also acknowledge, in the motion, what our procedural posture is. We are not parties. We cannot amend a complaint we did not file. We cannot move to modify an injunction in a case we are not in. We cannot defend the challenged ACIP members on the merits.

The First Circuit directed us to file a stay motion here in the first instance under FRAP 8(a)(1)(A). We complied. We are asking Judge Murphy for a ruling — grant or deny — so that we may return to the Court of Appeals with the FRAP 8(a)(1)(A) threshold satisfied.

Where this leaves the government

On April 15, 2026, the government filed a motion for summary affirmance in the First Circuit in our appeal. In that filing, the government acknowledged that the preliminary injunction is causing it irreparable harm. The government has not yet appealed the preliminary injunction. The time to appeal has not yet run. The government has not sought to modify the injunction. The government has not presented the April 1 charter renewal to the district court.

This is the strategic reality the filing documents: the entity with the legal authority, the factual record, and the standing to defend the chartering authority and the January 6 schedule changes in the district court is the government. The government has chosen, for reasons that are not public, not to do so. Private parties with standing problems, a denied intervention, and a novel supplemental-jurisdiction theory are carrying the work in the meantime, because someone has to do it, and for now, we’re the only (non) party willing to defend the Secretary’s (and Former acting CDC Director Jim O’Neill) actions.

What happens next

Judge Murphy will rule on the motion. If he grants it, the injunction is stayed pending the First Circuit appeal. (admittedly perhaps unlikely) If he denies it, we return to the First Circuit with a renewed FRAP 8 motion.

Either way, the goal or hope is to is review during the Supreme Court’s October Term 2025, which concludes in late June 2026. The First Circuit’s ruling, whichever way it goes, will frame a cert petition on the circuit split between Union of Concerned Scientists v. Wheeler, 954 F.3d 11 (1st Cir. 2020), on one side, and Center for Policy Analysis on Trade and Health v. Office of U.S. Trade Representative, 540 F.3d 940 (9th Cir. 2008), and Judge Silberman’s concurrence in Public Citizen v. National Advisory Committee on Microbiological Criteria for Foods, 886 F.2d 419, 427 (D.C. Cir. 1989), on the other.

The circuit split is real, and the question matters. Can a federal district court evaluate the individual CVs and publication records of presidential appointees to a federal advisory committee and decide, on its own view of the evidence, that some appointees are not sufficiently expert to serve? The First Circuit said yes in Wheeler. The Ninth Circuit and Judge Silberman said no. No Supreme Court decision resolves it.

Until the DOJ figures things out and steps up to the plate, it’s just us rejected intervenors. I hope that changes, but I’m not holding my breath.

Rick Jaffe, Esq.