Change Is In The Winds At DOJ

By John R. Fleder –

For over forty years there has been a unit in the Department of Justice dedicated to representing FDA in court actions.  Originally housed in the Antitrust Division under the name “Consumer Affairs Section”, the office was moved to DOJ’s Civil Division in the early 1980’s and called the “Office of Consumer Litigation.”  That office has historically represented the Federal Trade Commission, the Consumer Product Safety Commission, and enforced a number of other federal statutes.  However, since its founding, the office has devoted most of its resources to representing FDA, both in criminal and civil suits that FDA has wanted filed against persons who have allegedly violated the FDC Act, and in suits where persons have alleged that FDA has itself violated that act.

Last Friday, the Civil Division announced that Michael Blume, an Assistant United States Attorney in Philadelphia, will soon be heading that office.  It culminates a series of changes to the office under the Obama Administration’s Assistant Attorney General, Tony West.

First, the office was recently renamed the “Office of Consumer Protection Litigation.”  The name change was clearly not just symbolic.  It reflects Mr. West’s change in focus for the office.  Now, in addition to doing the types of cases described above, Mr. West has been moving the office to focus on matters such as mortgage fraud and immigration services fraud, which are areas of law enforcement that were not within the office’s responsibility until recently.

Mr. Blume comes to the office as its Branch Director without prior service there.  In its forty plus years, no one has ever headed the office who did not previously work in either the office or the division where the office was housed.  Indeed, Mr. Blume is the first person to head the office since the early 1970s who had not previously worked in the office.

Mr. Blume takes over the office from Kenneth Jost who has served as Acting Director for just under two months.  His predecessor was Eugene M. Thirolf, who admirably served as Director for almost nineteen years.  Mr. Thirolf, who retired in April was a clear upgrade over his predecessor.

It is quite unclear what effect Mr. Blume’s selection as Director will have on the office.  His experience as a prosecutor suggests that he will continue AAG West’s efforts to prosecute consumer fraud cases that are wholly unrelated to FDA.  With an expansion of the number of attorneys in the office under Mr. West, we will have to see if the office continues its historical focus as primarily devoting its resources to FDA matters.  Moreover, we will wait to see how this change impacts on the Justice Department’s client agency relationship with FDA.