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O’Malley Retirement Leaves Fed. Cir. With No Ex-Trial Judges (2)

July 28, 2021, 2:01 PM; Updated: July 28, 2021, 8:54 PM

Judge Kathleen M. O’Malley of the U.S. Court of Appeals for the Federal Circuit will retire March 11, according to the U.S. Courts website’s list of future judicial vacancies.

The vacancy will give President Joe Biden an opportunity to appoint a second judge to the court, which had no openings during the Trump administration. His first appointee, Tiffany P. Cunningham, was confirmed by the Senate July 19. Biden as a candidate promised to consider diversity in judicial appointments.

O’Malley joined the court in 2010. She came from the U.S. District Court for the Northern District of Ohio, and she is the only member of the Federal Circuit who previously served as a district court judge.

Judge Evan J. Wallach, who took senior status in May, was the only other member with trial judge experience, having served on the U.S. Court of International Trade.

‘Preferred Candidate’

O’Malley’s former clerks say district court experience gave her a unique perspective on the Federal Circuit.

“If you have to get reversed by a Federal Circuit Judge as a district court judge, Judge O’Malley is the preferred candidate as she would give some thought to what went into your opinion,” Sarah E. Jack, a Fish & Richardson PC associate in Minneapolis, said.

“She was always very cognizant of making sure her opinions reflected that she understood why a mistake—or whatever it was—happened,” said Jack, who clerked for O’Malley from 2019 until March of this year.

Former clerk Dorothy LeRay, now an associate at McNeill Baur in New York, said her respect for district courts came through in her preferred word choice.

“She never wanted us, for example, to refer to them as ‘lower courts’ in draft opinions,” LeRay, who clerked from 2015 to 2016, said. “That shapes the way she reviews appeals from district courts because she understands how much work had been put into those decisions.”

O’Malley recently wrote an opinion on what district court judges should require from patent infringement complaints. While she was hard on judges who apply pleading standards too stringently, she tried to lay out rules that they can apply.

Inspiring Boss

O’Malley has a devoted following among her former clerks.

Jack said “working with her makes you better by proxy, because you want to live up to her expectations and you know that she is excellent.”

O’Malley has also made good on her public statements on her commitment to diversity. All four clerks were women when Jack worked in her chambers.

“It’s really unique for patent attorneys to be in an environment where you’re working with all women,” she said. Jack also pointed out O’Malley’s commitment to looking for clerk candidates beyond the most elite law schools.

The judge also tried to make clerking during a challenging time over the past year and a half rewarding, clerks said.

Shehla Wynne, who clerked for O’Malley from 2019 to 2020, said “the judge was very, very aware that the clerks clerking during the pandemic were getting a very different experience so she was very tuned in to making sure immediately that we were connected to her.”

Wynne, now an associate at Jones Day in Washington, said O’Malley made sure that none of her clerks or staff “ever felt like we weren’t learning from her or she wasn’t there for us.”

‘A Lot to Offer’

O’Malley will be eligible to take senior status—a kind of semi-retirement—later in the year but decided instead to fully retire from the bench after 25 years as a judge. That frees her up to pursue other avenues of legal work.

For instance, Judge Paul Michel, who retired from the Federal Circuit in 2010, has taken advantage of no longer being on the bench to have the freedom to advocate for changes in the patent system.

O’Malley “was appointed to the district court so young, when she was in her 30s,” former clerk Shayon Ghosh of Williams & Connolly LLP in Washington said. “She’s still quite young and has a lot to offer.” He clerked for O’Malley from 2017 to 2018.

Jason Lichtman, partner at Lieff Cabraser Heimann & Bernstein LLP in New York, who clerked for O’Malley while she was on the district court, said he’s excited to find out what comes next for her.

But, he said, “this is an incredible loss to the bench: there are other brilliant jurists and there are other pragmatic jurists, but Judge O’Malley is one of the few who is both.”

(Updated with additional reporting throughout.)

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com

To contact the editors responsible for this story: Renee Schoof at rschoof@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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