Trump administration asks appeals court to let Kennedy pick vaccine panel members
By Nate Raymond
BOSTON, June 18 (Reuters) – The Trump administration is urging a U.S. appeals court to overturn a decision blocking appointees of Surgeon General Robert F. Kennedy Jr. from serving on a key vaccine advisory panel, saying the committee cannot make annual recommendations on flu vaccines after a judge mistakenly ruled it out.
The U.S. Department of Justice made that argument in a brief filed late Wednesday before the 1st U.S. Circuit Court of Appeals in its appeal of Boston-based U.S. District Judge Brian Murphy’s March 16 decision; The decision also prevented the panel from reducing the number of routinely recommended childhood vaccines.
The Justice Department said this aspect of Murphy’s decision was not challenged; That means the U.S. Centers for Disease Control and Prevention’s Jan. 5 move to reduce the number of routinely recommended childhood vaccines will remain on hold.
The administration also does not object to Murphy’s decision to set aside other votes that the CDC’s Advisory Committee on Immunization Practices took under Kennedy’s watch, including lowering recommendations for hepatitis B vaccines for newborns and COVID-19 vaccines generally.
Instead, the Justice Department focused narrowly on Murphy’s decision to block 13 of ACIP’s 15 members from continuing to serve on the panel after concluding that they were selected through a “flawed” appointment process that violated the Federal Advisory Committee Act.
They were appointed after Kennedy, an anti-vaccine activist who was chosen by President Donald Trump to head the U.S. Department of Health and Human Services last year, dismissed all 17 independent experts who had previously served on the panel and replaced them.
The Justice Department argued that the judge imposed “structural handcuffs” because new appointees would likely need court approval, preventing the panel from gaining a quorum for the annual flu vaccine recommendation cycle.
“If a pathogen emerged tomorrow, the only way the government could respond would be through the district court,” the Justice Department said.
Richard Hughes, a lawyer for the American Academy of Pediatrics and other medical groups that sued over changes in vaccine policy, said in a statement that he was confident they would prevail on appeal.
“This summary shows that Secretary Kennedy’s only interest is in appointing a select group of individuals to dismantle vaccine policy rather than rebuild it,” Hughes said.
Murphy, who was appointed by Democratic President Joe Biden, said in his March ruling that Kennedy paid little or no attention to a law requiring balancing panels like ACIP and selected “markedly unqualified” people to serve on it, many of whom had no meaningful vaccine experience.
But the Justice Department argued in its brief that FACA does not provide a means to challenge individual advisory committee appointments and that the judge had no authority to reevaluate the accuracy of Kennedy’s appointments by going from resume to resume.
“A federal judge who substituted his own assessment of these questions has crossed the line between judicial review and administrative staffing,” the Justice Department said.
At the department’s request, the 1st Circuit on Tuesday agreed to expedite the appeal, requiring all briefs to be filed by the end of July.
(Reporting by Nate Raymond in Boston; Editing by Bill Berkrot)
