ACIP Goes Back to Court

The fight over standing, executive power and judicial reach

By: Dr.'s Jill Glasspool Malone and Robert W. Malone

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The First Circuit takes up the limits of judicial power

There is an important development in the lawsuit brought by the American Academy of Pediatrics and other medical organizations against HHS Secretary Robert F. Kennedy Jr. On October 6, three federal appellate judges will hear arguments over whether one district judge had the authority to effectively shut down ACIP. The case is now before the U.S. Court of Appeals for the First Circuit, and the underlying dispute is about much more than vaccines.

In March, U.S. District Judge Brian Murphy issued a preliminary order staying the January 2026 revision of the CDC childhood immunization schedule. But he went considerably further. He also stayed the appointments of thirteen members of the Advisory Committee on Immunization Practices (ACIP) and stayed votes taken by that committee. The practical consequence was extraordinary: a federal district judge effectively prevented the newly constituted ACIP from functioning. HHS and the Department of Justice (belatedly) appealed, and the First Circuit must now decide whether the district court had the legal authority to do that.

Kennedy’s decision to reconstitute ACIP was hardly unprecedented. In 2021, Biden EPA Administrator Michael Regan removed the existing members of two major federal scientific advisory committees, the Clean Air Scientific Advisory Committee and Science Advisory Board, and reconstituted them with new members. Removed Trump-era advisers sued, alleging that the Biden administration had violated FACA’s requirement that advisory committees be “fairly balanced.”

A federal district court rejected the challenged claims. The Biden administration similarly reconstituted the Homeland Security Advisory Council after dismissing its existing members. And when Trump returned to office in 2025, his administration removed Biden-era members of EPA’s scientific advisory committees and began rebuilding them yet again. Presidential administrations reconstituting FACA advisory committees is therefore not novel. The much more difficult legal question in the AAP case is why reconstituting ACIP produced a judicial remedy effectively suspending the entire committee when comparable changes in other administrations did not.

So why didn’t the government make more of the fact that incoming administrations have reconstituted FACA advisory committees before and that the courts have upheld this precedent?

This was not merely a distant historical analogy involving some obscure presidential commission; this happened in the Biden and Trump administrations. Yet that history does not appear to have been developed as a central part of the government’s original defense of the reconstituted ACIP despite the clear and compelling judicial precedent. Incorporating this into the defense would have established something important from the outset: reconstituting a scientific advisory committee after a change in administration was not, by itself, an unprecedented exercise of executive authority. Skeptics might hypothesize that what appears to be gross incompetence was actually a tell of hidden intent to delay an ACIP meeting until after the November election. Particularly prone to such speculation would be those skeptics privy to HHS internal communications suggesting it would be politically desirable to do so.

Before the appellate court ever reaches the larger question of judicial power, however, it must confront a more basic one: what gives the American Academy of Pediatrics standing to challenge who sits on ACIP in the first place? Article III standing ordinarily requires more than having an interest in a government body’s work or disagreeing with its decisions. A plaintiff must identify a concrete and particularized injury, show that the injury is fairly traceable to the government action being challenged, and show that a court can redress it.

AAP is a private nonprofit medical association. ACIP does not regulate AAP, impose legal obligations on it, or require its members to follow its recommendations. Yet Judge Murphy concluded that AAP and the other medical organizations have a “direct interest” in ACIP’s work because vaccine recommendations affect their members’ medical practices and because several of the organizations had previously participated in ACIP working groups. Under Murphy’s reading of the Federal Advisory Committee Act, or FACA, an improperly balanced advisory committee therefore causes them sufficient injury to challenge its composition. That is an unusually consequential theory of standing: the asserted injury is not that ACIP directly regulates AAP, but that AAP and its members have a professional interest in the work of an advisory committee whose recommendations may later influence federal vaccine policy.

DOJ sees a fundamental problem with that reasoning. ACIP is an advisory committee. Its members do not regulate AAP, vaccinate AAP’s patients, or generally impose legal obligations on its physicians. They do not even make the decisions that regulate the AAP members.

ACIP makes recommendations. Those recommendations do not become official CDC recommendations merely because ACIP votes for them. They must subsequently be reviewed and adopted by the CDC Director. That creates a basic Article III question: what concrete injury to AAP is caused simply by these thirteen people sitting on ACIP? If the claimed injury arises only after the CDC Director adopts an ACIP recommendation, then why isn’t the proper target for judicial review that subsequent agency action rather than the appointments of the people who advised the Director?

That standing question has become even more significant because another federal judge recently considered a challenge involving the same ACIP appointments in Arizona v. Kennedy and rejected standing. DOJ promptly brought that decision to the First Circuit’s attention. AAP argues that its situation is different because of its relationship with ACIP, including its previous participation in ACIP working groups. But the disagreement gives the First Circuit a relatively narrow way to resolve this appeal. If the judges conclude that AAP lacks Article III standing to challenge the appointments themselves, they could reverse that portion of Judge Murphy’s order without deciding the much larger questions surrounding the scope of judicial power.

If AAP clears the standing hurdle, DOJ has another argument. The Administrative Procedure Act permits courts to review certain final “agency actions,” but DOJ argues that appointing an individual to a federal advisory committee isn’t the kind of agency action contemplated by the APA. That matters because Judge Murphy relied on §705 of the APA to “stay” the appointments. If an appointment isn’t reviewable agency action, §705 cannot provide authority to suspend it. There is another problem in the statutory language itself. Section 705 permits a reviewing court, under appropriate circumstances, to “postpone the effective date” of agency action while litigation proceeds. But these thirteen ACIP members had already been appointed and were already serving. DOJ therefore asks what, exactly, the court was postponing. Its argument is that Murphy wasn’t postponing appointments that had yet to take effect. He was effectively removing already-serving advisory committee members from their positions. Calling it a “stay” does not change the substance of the order: it removes sitting ACIP members from their positions.

That brings the case directly into the shadow of the Supreme Court’s 2025 decision in Trump v. CASA. In CASA, the Supreme Court restricted the ability of individual federal district judges to issue universal injunctions providing relief far beyond the parties actually before them. The central principle is that judicial relief ordinarily must be tailored to provide complete relief to the plaintiffs rather than allowing one district judge to exercise general supervision over federal policy. DOJ has now expressly invoked CASA in the ACIP appeal.

The government argues that Judge Murphy cannot avoid CASA simply by describing his order as a statutory §705 “stay” rather than an injunction. Murphy had already stayed the challenged vaccine actions, relief that itself has consequences well beyond the plaintiffs in this lawsuit. But he then went further, suspending the appointments of thirteen ACIP members and effectively preventing the committee from functioning at all.

That raises a different question about the scope of the remedy: once the specific vaccine actions being challenged had been stayed, what additional injury to AAP required the court to disable the advisory committee that had recommended them? DOJ’s argument is not simply that Murphy’s order had nationwide consequences. It is that the additional remedy against ACIP’s membership was unnecessary to redress the injuries the plaintiffs claimed and therefore exceeded the limits on judicial relief emphasized by the Supreme Court in CASA.

And that raises another fundamental question: who gave a federal district judge the authority to decide what a properly “balanced” scientific advisory committee should look like? FACA requires advisory committees to be “fairly balanced,” but provides no mathematical formula for ideological, professional, scientific, or institutional representation. Yet Murphy concluded that the imbalance he perceived justified suspending all thirteen appointments.

And this case illustrates precisely why the issue of activist judges matters: one district judge did not simply provide relief to the plaintiffs before him. His order reached into the Executive Branch, suspended thirteen already-appointed members of a federal advisory committee, and effectively prevented that committee from functioning nationwide.

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Who are the Judges?

We now also know which judges will hear the October 6 argument: Chief Judge David Barron, Judge William Kayatta Jr., and Judge Joshua Dunlap. Barron and Kayatta were appointed by President Obama; Dunlap was appointed by President Trump. But those political labels tell us relatively little about how this particular case will be decided.

The most interesting judge may actually be Kayatta, because he authored Union of Concerned Scientists v. Wheeler, an important First Circuit decision involving FACA and the APA. That case allowed judicial review of an EPA policy governing membership on federal scientific advisory committees, and AAP relies heavily upon it. DOJ argues that AAP is stretching Kayatta’s decision beyond what it actually held. Wheeler involved judicial review of an agency policy governing committee membership. It did not hold that federal judges could examine individual appointments, decide whether particular advisory committee members produced an acceptable balance, and then suspend those individuals from serving. On October 6, Judge Kayatta may therefore effectively be asked to define the boundaries of his own precedent.

The First Circuit therefore has several ways to resolve this appeal. It could conclude that AAP lacks standing to challenge the ACIP appointments themselves. It could decide that individual appointments are not reviewable “agency action” under the APA. It could conclude that §705 does not authorize a judge to “postpone” appointments that had already taken effect.

Or it could confront the larger question raised by Trump v. CASA: whether suspending all thirteen ACIP appointments exceeded the permissible scope of judicial relief. Any one of those conclusions could overturn the portion of Murphy’s order disabling ACIP without resolving the entire underlying vaccine-policy lawsuit.

But there is an even more fundamental question beneath all of this. FACA requires advisory committees to be “fairly balanced,” but Congress provided no formula defining the correct balance of scientific disciplines, professional experience, institutional affiliations, or scientific viewpoints. At the same time, the appointment of ACIP members was placed in the Executive Branch, with the HHS Secretary responsible for selecting the committee’s members. The statute imposes a requirement of balance, but it does not transfer the power of appointment from the Executive Branch to the judiciary. Nothing in FACA appoints a federal district judge as the nation’s referee of scientific balance, empowered to decide which experts belong on an advisory committee and then remove those he believes do not. Yet that is where Judge Murphy’s order ultimately leads: a single district judge substituted his judgment about the acceptable composition of a federal scientific advisory committee for that of the Executive Branch official legally charged with appointing its members. Judicial review of whether the Executive complied with the law is one thing. Judicially deciding what the committee should look like is something else entirely.

That is why October 6 matters. This case is no longer simply a fight between the American Academy of Pediatrics and Secretary Kennedy over vaccines. It is a test of the boundaries of judicial power. Can a private non-profit organization establish standing because it has a professional interest in the work of an advisory committee, persuade one district judge that the committee is insufficiently “balanced,” and then obtain an order suspending every sitting member and preventing that federal advisory committee from functioning nationwide?

If the answer is yes, the implications reach far beyond ACIP. Every change of administration, every reconstitution of a federal advisory committee, and every disagreement over what constitutes ideological, professional, or scientific “balance” potentially becomes an invitation for a federal judge to decide who may sit at the table.

The First Circuit is now being asked to decide where judicial review ends and judicial control of the Executive Branch begins.

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References

1. American Academy of Pediatrics, et al. v. Kennedy, et al., U.S. District Court for the District of Massachusetts, Memorandum and Order on Plaintiffs’ Motion for Preliminary Injunction, March 16, 2026. Judge Brian E. Murphy’s order stayed the January 2026 childhood immunization schedule memorandum, the appointments of thirteen ACIP members, and votes taken by the challenged ACIP.
   District Court order

2. American Academy of Pediatrics, et al. v. Kennedy, et al., U.S. Court of Appeals for the First Circuit, No. 26-1503. Appellate docket and filings, including the government’s opening brief, plaintiffs’ response, government’s reply, supplemental authorities, and October 6, 2026 oral-argument date.
   Georgetown Health Care Litigation Tracker and court filings

3. Trump v. CASA, Inc., 606 U.S. ___ (2025), U.S. Supreme Court, June 27, 2025. The Court held that universal injunctions likely exceed the equitable authority Congress granted federal courts where broader relief is not necessary to provide complete relief to the plaintiffs.
   Supreme Court opinion

4. Young v. U.S. Environmental Protection Agency, No. 1:21-cv-02623 (D.D.C. 2022). Challenge to the Biden EPA’s removal and reconstitution of the Clean Air Scientific Advisory Committee and Science Advisory Board under FACA and the APA, including the claim that the reconstituted committees were not “fairly balanced.”
   Preliminary-injunction opinion
   Summary-judgment opinion

5. Union of Concerned Scientists v. Wheeler, 954 F.3d 11 (1st Cir. 2020). First Circuit decision addressing judicial review under the APA of an EPA directive governing membership on federal scientific advisory committees. Opinion by Judge William J. Kayatta Jr.
   First Circuit opinion

6. State of Arizona, et al. v. Kennedy, et al., No. 26-cv-01609-VC (N.D. Cal.), Order Granting in Part and Denying in Part Motion to Dismiss, September 8, 2026. Judge Vince Chhabria dismissed the states’ claims challenging the ACIP appointments for lack of Article III standing, finding deficiencies in injury, causation and redressability.
   September 8 order