Kathleen M. O'Malley

Nomination Tracker
Nominee Information
	Name: Kathleen M. O'Malley
	Court: Federal Circuit
Progress
	Confirmed 287 days after nomination.
	Nominated: March 10, 2010
	ABA Rating: Unanimously Well Qualified
	Questionnaire: Questionnaire
	Hearing: July 28, 2010
	QFRs: QFRs (Hover over QFRs to read more)
	Reported: September 23, 2010
	Confirmed: December 22, 2010
	Vote: Voice vote

Kathleen M. O'Malley was a federal judge for the United States Court of Appeals for the Federal Circuit. She joined the court in 2010 after a nomination from President Barack Obama (D). O'Malley retired on March 11, 2022.^[1]^[2]^[3]

Biography

Early life and education

Born in Drexel Hill, Pennsylvania, O'Malley graduated from Kenyon College with her bachelor's degree in 1979 and from Case Western Reserve University School of Law with her J.D. in 1982.^[4]

Professional career

2010-2022: Judge, United States Court of Appeals for the Federal Circuit
1994-2010: Judge, United States District Court for the Northern District of Ohio
1991-1994: Office of the Attorney General of Ohio

1993-1994: Chief of staff and first assistant
1991-1993: Chief counsel

1983-1991: Private practice, Cleveland, Ohio
1982-1983: Law clerk, Hon. Nathaniel Jones, United States Court of Appeals for the 6th Circuit^[4]

Judicial career

Federal Circuit Court of Appeals

O'Malley was nominated by President Obama on March 10, 2010, to fill a seat on the United States Court of Appeals for the Federal Circuit vacated by Alvin Schall.^[5] Obama said of the nomination, "Kate O’Malley will... bring an unwavering commitment to fairness and judicial integrity to the federal bench."^[6]

The Federal Circuit Bar Association supported O'Malley's nomination to the Federal Circuit.^[7] The American Bar Association rated O'Malley Unanimously Well Qualified for the nomination.^[8]

O'Malley's hearing before the Senate Judiciary Committee was on July 28, 2010. On September 23, 2010, the Senate Judiciary Committee voted unanimously to report O'Malley's nomination to the United States Senate for a vote. O'Malley was confirmed by the Senate on December 22, 2010.^[9]^[10]^[11]^[12] She received her commission on December 27, 2010.^[4]

Northern District of Ohio

O'Malley was nominated to the United States District Court for the Northern District of Ohio by President Bill Clinton on September 20, 1994, to a seat vacated by John Potter. The American Bar Association rated O'Malley Substantial Majority Well Qualified, Minority Qualified for the nomination.^[13] Hearings on O'Malley's nomination were held before the Senate Judiciary Committee on October 6, 1994, and her nomination was reported by then-U.S. Sen. Joseph Biden (D-Del.) the same day. O'Malley was confirmed on a voice vote of the U.S. Senate on October 7, 1994, and she received her commission on October 12, 1994. O'Malley resigned from the district court on December 27, 2010, upon her elevation to the United States Court of Appeals for the Federal Circuit. O'Malley's seat on the Northern District of Ohio was abolished under provisions of the Consolidated Appropriations Act of 2010.^[4]^[14]^[15]

Noteworthy cases

Federal Circuit raises standard to remove federal employees (2021)

The United States Court of Appeals for the Federal Circuit on March 11, 2021, set a new bar for firing federal agency employees in the case Santos v. National Aeronautics and Space Administration (NASA).^[16]^[17]

The court found that NASA failed to provide justification for placing its employee, Fernando Santos, on a Performance Improvement Plan (PIP). An agency generally issues a PIP as a signal to a poor-performing employee before initiating disciplinary action.^[16]^[17]

The three-judge panel (Judges Kathleen M. O'Malley, William Bryson, and Todd Hughes) ruled that federal law requires agencies to justify the issuance of a PIP when a fired employee challenges a PIP-based removal. Prior to the court’s decision, agencies had not been required to justify the use of a PIP.^[16]^[17]

“Allowing a PIP to serve as the pre-removal notice required by Section 4303 is not the same as allowing the mere fact of a PIP to create a presumption that the pre-PIP conduct was actually unacceptable,” wrote Judge O’Malley in the opinion. “Thus, we hold that, once an agency chooses to impose a post-PIP termination, it must prove by substantial evidence that the employee’s unacceptable performance ‘continued’—i.e., it was unacceptable before the PIP and remained so during the PIP.”^[16]^[17]

The judges remanded the case to the Merit Systems Protection Board for further proceedings.^[16]^[17]

SCOTUS upholds Federal Circuit over interpretation of federal trademark law (2017)

See also: United States Court of Appeals for the Federal Circuit (Matal v. Tam)

On April 3, 2017, the U.S. Supreme Court affirmed the judgment of an en banc panel of the Federal Circuit. Judge Kathleen O'Malley issued a concurring opinion in the case.

Simon Shiao Tam, the founder of a rock band called THE SLANTS, attempted to register the band's name with the U.S. Patent and Trademark Office (PTO) for trademark protection. The PTO refused, citing a provision under the Lanham Act, a federal trademark law, that prohibits extending trademark protection for anyone registering scandalous, immoral, or disparaging marks. The Federal Circuit Court of Appeals rejected the PTO's claim, holding that the provision of the Lanham Act in question, 15 U.S.C. §1052(a), was unconstitutional.

In a concurring opinion, Judge Kathleen O'Malley stated not only that §1052(a) violated the First Amendment, but that §1052(a) "was also unconstitutionally vague, rendering it unconstitutional under the Fifth Amendment to the United States Constitution."^[18]

Writing for a seven-justice majority, Justice Samuel Alito affirmed the circuit court's decision. In his opinion for the court, Justice Alito acknowledged Judge O'Malley's opinion and noted "the admitted vagueness of the disparagement test and the huge volume of applications have produced a haphazard record of enforcement."^[19]

External links

Footnotes

Political offices
Preceded by Alvin Schall	United States Court of Appeals for the Federal Circuit 2010-2022	Succeeded by Leonard Stark
Preceded by John Potter	United States District Court for the Northern District of Ohio 1994-2010	Succeeded by -