Appeals Court Questions Judge’s ‘Intrusive’ Order on RFK Jr. Appointments

Health Secretary Robert F. Kennedy Jr. in Dallas, Texas, on Sept. 9, 2026. Brandon Bell/Getty Images

A federal appeals court on Oct. 6 questioned an order from a U.S. district judge that blocked a panel of vaccine advisers from meeting, as it considers staying the judge’s order.

“What is the harm that needs to be redressed, or that would justify this kind of intrusive relief?” one of the judges on a U.S. Court of Appeals for the First Circuit panel asked during an oral hearing in the case.

In March, U.S. District Judge Brian Murphy in Massachusetts blocked a January overhaul of the childhood vaccine schedule by federal officials, ruling that they neglected to involve panel that advises the Centers for Disease Control and Prevention on vaccines called ACIP.

Murphy also blocked most of Health Secretary Robert F. Kennedy Jr.’s appointments to the ACIP committee, determining that many of the members were unqualified and that the committee lacked balance, as required by federal law. Kennedy had removed all ACIP members in 2025, saying they had conflicts of interest, and selected new advisers such as vaccine inventor Dr. Robert Malone and Retsef Levi, a professor of operations management at the Massachusetts Institute of Technology.

The committee hasn’t met since.

Lawyers for the government argued that order improperly blocked the appointments despite them not being a final agency action, despite plaintiffs such as the American Academy of Pediatrics not having an injury addressed by staying the selections, and despite the Supreme Court ruling in a separate case that said Kennedy had the authority to appoint members to a federal task force.

“We’re asking the court to vacate the order on the appointments so that the secretary can reconstitute the committee and get it back to work,” Matthew Zorn, a government lawyer, told the First Circuit panel on Tuesday.

Zorn said vacating the order would not harm the organizations that sued and would not implicate their interests.

Andrew Pincus, an attorney for the plaintiffs, argued that Murphy entered the “least intrusive relief possible” and that under the order, Kennedy could have re-selected some members and brought some new members on board. “If that constellation of people was lawful, his order would not prohibit that ACIP from going forward,” Pincus said.

Zorn disagreed.

“The practical matter of this case is, the secretary wants to get the ACIP back to work, and we’re being told that if he reconstitutes any committee, it’s going to be right back in court,” he said.

Pincus also argued, in response to a judge wondering what harm the order addressed, that the American Academy of Pediatrics and the other organizations that sued over the schedule changes and appointments would be injured by an unlawfully constituted ACIP meeting because they would not be able to take part since officials removed them as liaison members.

One of the circuit judges on the panel asked whether the plaintiffs would be harmed if ACIP met tomorrow with members whose appointments Murphy stayed and adopted recommendations the plaintiffs want to see.

Yes, Pincus said, because the committee doesn’t have a balance of views to give such a recommendation legitimacy.