By Nate Raymond
BOSTON, June 18 (Reuters) - The Trump administration is urging a U.S. appeals court to overturn a ruling that blocked Health Secretary Robert F. Kennedy Jr.'s appointees from serving on a key vaccine advisory panel, saying the committee is unable to make annual recommendations on flu shots after a judge wrongly disabled it.
The U.S. Department of Justice made that argument in a brief filed late on 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 ruling, which also blocked the panel from reducing the number of routinely recommended childhood vaccinations.
The Justice Department said it was not challenging that aspect of Murphy's ruling, meaning that the U.S. Centers for Disease Control and Prevention's January 5 move to cut the number of routinely recommended childhood vaccinations will remain on hold.
Nor is the administration challenging Murphy's decision to set aside other votes the CDC's Advisory Committee on Immunization Practices had taken under Kennedy's watch, including to downgrade recommendations for hepatitis B vaccines for newborns and COVID-19 shots broadly.
Instead, the Justice Department focused narrowly on Murphy's decision to bar 13 of ACIP's 15 members from continuing to serve on the panel after concluding they were selected through a "tainted" appointment process in violation of the Federal Advisory Committee Act.
They were appointed after Kennedy, an anti-vaccine activist picked by President Donald Trump last year to head the U.S. Department of Health and Human Services, removed and replaced all 17 independent experts who previously served on the panel.
The Justice Department argued the judge had imposed "structural handcuffs" that have prevented the panel from having a quorum to meet for the annual flu vaccine recommendation cycle, since any new appointees would likely need the court's approval.
"Should a pathogen emerge tomorrow, the government's only path to respond would run through the district court," the Justice Department argued.
Richard Hughes, a lawyer for the American Academy of Pediatrics and other medical groups that had sued over the vaccine policy changes, in a statement said he was confident they would prevail on appeal.
"This brief demonstrates that Secretary Kennedy's sole interest is installing a select group of individuals to dismantle rather than restore vaccine policy," Hughes said.
In his March ruling Murphy, who was appointed by Democratic President Joe Biden, said Kennedy paid little to no attention to a law requiring panels like ACIP to be balanced and picked "distinctly unqualified" individuals to serve on it, most of whom lacked any meaningful vaccine experience.
But the Justice Department in its brief argued FACA does not provide a means to challenge individual advisory committee appointments and the judge had no authority to reassess the wisdom of Kennedy's appointments by going résumé by résumé.
"A federal judge who substitutes his own assessment of those questions has crossed the line between judicial review and executive staffing," the Justice Department argued.
At the department's request, the 1st Circuit on Tuesday agreed to expedite the appeal, requiring all briefs to be filed by late July.
(Reporting by Nate Raymond in Boston; Editing by Bill Berkrot)
