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Federal Circuit Seat Opens for Biden as Wallach Goes Senior (2)

March 16, 2021, 1:58 PM; Updated: March 16, 2021, 9:57 PM

The Federal Circuit will have its first open seat in six years when Judge Evan J. Wallach takes senior status at the end of May.

Wallach was appointed to the U.S. Court of Appeals for the Federal Circuit by President Barack Obama in 2011 after serving for 16 years as a judge on the U.S. Court of International Trade. He will assume senior status, a form of semi-retirement, May 31, according to the Administrative Office of the U.S. Courts.

President Joe Biden will now have the chance to nominate someone to the court, which was the only federal court of appeals that didn’t have any vacancies during President Donald Trump’s administration. The court handles all appeals of patent cases in the U.S. and appeals from various government agencies.

The Federal Circuit is the only federal appeals court that has never had a Black judge, giving Biden a chance to make good on promises to consider diversity in judicial appointments.

Wallach wrote the 2017 opinion that expanded the bar on competitor standing to appeal decisions from the Patent Trial and Appeal Board. He also authored a 2019 opinion expanding a rule that allows the winning side to recoup legal costs in exceptional patent cases by citing the number of lawsuits a patent owner files.

Wallach is an active questioner during oral argument, often interrupting attorneys early to pin down parts of the record and clarify their briefs.

The judge is “incredibly detail-oriented and super interested in facts,” Lukman Azeez, who clerked for Wallach from 2014 to 2016, said. Azeez called Wallach an “incredibly hard worker” who would enter his chambers at 3 a.m. to get a jump on work.

“I always felt like, because he didn’t have a patent background, he felt that he needed to work harder,” said Azeez, who is now an associate at Wiley Rein in Washington.

Former clerk Devin Sikes attributes Wallach’s work ethic to his service in Vietnam and his early work as a trial attorney.

“Applying these lessons as a jurist, Judge Wallach prepares intensely each month in the cases assigned to him, much like he would when preparing for a mission in the field or a week-long trial, said Sikes, who clerked from 2015 to 2017 and now practices trade law at Akin Gump Strauss Hauer & Feld LLP in Washington. “He fully prepares, and then some,” Sikes said in an email.

‘A Real Jokester’

Being first to the office means Wallach always makes coffee for everyone, Shaelyn Dawson, who clerked for him from 2013 to 2015, remembers.

“He is also a real jokester and has an amazing sense of humor,” said Dawson, an associate at Morrison & Foerster LLP who specializes in patent litigation.

Jonathan Darrow, who clerked for Wallach from 2014 to 2016, told the story of a prominent attorney speaking too loud during arguments.

“Judge Wallach offered to turn off his hearing aid to accommodate the attorney’s loud voice, eliciting subdued laughter from the normally silent public audience,” said Darrow, who is now on the faculty at Harvard Medical School. “Judge Wallach never forgot the importance of humor and the human element, even in the midst of challenging and important legal issues.”

Wallach is often described as “quirky” for wearing bow ties and having authored a children’s book, Azeez said. But Azeez worries that description overlooks his intellect and abilities as a judge.

Wallach is really interested in getting to know his clerks and really cares about diversity, both of ethnicity and background, Azeez said. “His clerks are not typical clerks that the other judges hire,” he said, saying many don’t have science backgrounds and worked before coming to the court.

Before he was appointed to the bench, Wallach worked as a general litigation partner focusing on media representation at Lionel Sawyer & Collins in Las Vegas.

He also served as general counsel and public policy adviser to former Sen. Harry Reid (D-Nev.), as a judge advocate in the Nevada National Guard, and as an attorney adviser in the International Affairs Division of the Judge Advocate of the Army at the Pentagon. He is an Army veteran, decorated for combat service in Vietnam.

With a narrow Democratic majority in the Senate and no 60-vote threshold for pushing judicial nominees past GOP opposition, Biden has a growing opportunity to make an impact on the courts.

There are seven current appeals court vacancies and four other appellate seats besides Wallach’s opening up in the future, according to the Administrative Office of the U.S. Courts. Biden hasn’t submitted any appellate court nominations to the U.S. Senate.

—With assistance from Madison Alder.

(Updated with additional reporting)

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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