On September 2, 2022, President Joe Biden nominated Orelia Merchant to serve as a United States District Judge for the Eastern District of New York. Ms. Merchant has served as Chief Deputy Attorney General for State Counsel in the New York State Attorney General’s Office since 2019. She previously served in the United States Attorney’s Office for the Eastern District of New York from 2002 to 2019 and served as Assistant Regional Counsel for the United States Environmental Protection Agency from 1998 to 2002.
Orelia Eleta Merchant was born in the Bronx, New York in 1971. Ms. Merchant earned her B.S. in physics and mathematics from Dillard University in 1992, a M.A. in marine science from the College of William and Mary in 1995, and her J.D. from Tulane University Law School in 1998.
After law school, Ms. Merchant served as an Assistant Regional Counsel for the United States Environmental Protection Agency (“USEPA”) in Chicago, Illinois, where she litigated environmental enforcement actions, negotiated settlements, and provided counseling for various programs. From 2000 to 2001, while employed at USEPA, Merchant was assigned to the U.S. Attorney’s Office for the Eastern District of Louisiana as a Special Assistant United States Attorney, where she was served in both the Civil and Criminal Divisions. There, she was responsible for the investigation and prosecution of general crimes, including violent and drug crimes, criminal environmental cases and defending the government in tort and employment actions. Between 2001 and 2002, Ms. Merchant returned to her work at USEPA.
In 2009, Ms. Merchant became an Assistant U.S. Attorney in the Civil Division of the Eastern District of New York, where she managed a diverse, demanding and complex caseload, handling a wide range of affirmative and defensive matters. During this period, Ms. Merchant prosecuted asset forfeiture, environmental, health care fraud and mortgage fraud cases. Ms. Merchant also worked in cases concerning employment discrimination, medical malpractice, bankruptcy, immigration, personal injury, social security, prisoner litigation, constitutional challenges, and federal program ligation. She engaged in all levels of trial practice, including pre-trial discovery and dispositive motions practice. Ms. Merchant regularly argued discovery and dispositive motions before the U.S. District Court for the Eastern District of New York and represented the United States in the United States Court of Appeals for the Second Circuit.
From 2016 to 2019, Ms. Merchant served as an Executive Assistant U.S. Attorney in the Civil Division of the Eastern District (“USAO”), where she provided counsel to the U.S. Attorney and division supervisors of USAO policy, procedures, and personnel matters. She represented USAO in high-level meetings regarding some of the most significant cases and investigations, including settlement discussions related to complex white collar crime cases. She also oversaw the Civil Division, representing the interests of the United States in nearly 1,000 active cases and matters, including management of approximately 350 permanent employees and 50 contract employees.
Since 2019, Ms. Merchant has served as Chief Deputy Attorney General for State Counsel, a member of the New York State Attorney General’s executive leadership team. As State Counsel, Ms. Merchant heads the Division of the State Counsel, which consists of seven bureaus statewide, including Civil Recoveries, Claims, Litigation, Real Property, and Sex Offender Management Bureaus, that handle litigation involving the state agencies and officials. In this role, Ms. Merchant oversees more than 8,000 active cases, and manages 450 employees, including 250 attorneys, in prosecution and defense of cases in state and federal court on behalf of the state.
The following cases are illustrative of Ms. Merchant’s litigation career:
The In Re Hurricane Sandy Cases included more than 1,300 cases arising out of Hurricane Sandy that were filed against the private insurance carriers that were funded by the Federal Emergency Management Agency (“FEMA”). From 2014 to 2015, Ms. Merchant represented FEMA at numerous hearings and hundreds of court conferences in these cases. FEMA’s handling of Hurricane Sandy property damage floor insurance-based claims under the National Flood Insurance Program was often in the national spotlight. Ms. Merchant coordinated with FEMA, private insurance carriers funded by FEMA, and the court to address issues that arose during claims processing, such as the insurance carrier erroneously denying meritorious claims. Ms. Merchant was instrumental in achieving favorable results for homeowners who had been improperly denied coverage. She also managed and counseled AUSUAs in resolving appropriately 125 of these cases.
In United States ex rel. Bozzelli v. PHH Corporation, Ms. Merchant worked with agency partners and a multi-district team to investigate whether PHH Corporation violated the False Claims Act by fraudulently issuing mortgage loans. Specifically, PHH Corporation was accused of knowingly originating and underwriting mortgage loans insured by the U.S. Department of Housing and Urban Development’s Federal Housing Administration (FHA), guaranteed by the U.S. Department of Veteran’s Affairs, and purchased by the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (Freddie Mac) that did not meet the applicable originating, underwriting, and quality control requirements. In 2017, the case settled for approximately $75 million.
In United States v. BCF Oil Refining Inc, Ms. Merchant represented the United States in a cost recovery action, in which the U.S. sought $3.5 million from the defendant company after the government removed and disposed of hazardous waste from the company’s work site. BCF owned and operated a waste oil processing facility and, after discovering it had accepted hazardous oil waste, the company abandoned the facility. Due to the environmental dangers posed by the substances the company left behind, the Environmental Protection Agency removed the hazardous material. Ms. Merchant prepared and filed a complaint against the company, claiming that they were required under the law to repay the government for removing the hazardous materials. The parties settled the case and the court issued a consent judgment, requiring that the company abide by the negotiated terms.
In United States v. Pineda-Giraldo et al., Case No. 04-CR-0039 (E.D.N.Y) (Glasser, J.) (Go, M.J.), from 2003-2004 Ms. Merchant represented the United States, with co-counsel, in the prosecution of nine alleged members of a New York-Colombia money laundering ring for conspiring to launder more than $6 million in drug money by sending it to Colombia, South America. For two years, Ms. Merchant worked on the investigation with federal agents. She prepared the grand jury presentation and post-indictment restraining motions. The defendants plead guilty to the money laundering conspiracy in 2006.
In Andretta v. Napolitano¸ a sixty-one-year-old plaintiff sued his employer, the Department of Homeland Security (“DHS”), for age discrimination. The plaintiff, a Customs and Border Patrol Agent, claimed that DHS failed to promote him to a Supervisor role on the basis of his age. DHS argued that the department had undergone a detailed and thorough, multi-step recommendation process, based on objective and legitimate criteria, that the plaintiff was not recommended for the Supervisor position. Ms. Merchant handled the pretrial matters and filed the government’s motion to dismiss the case, which the court granted.
In Tripp v. United States, Case No. CV-12-5777 (E.D.N.Y.) (Johnson, J.) (Pohorelsky, M.J.), Ms. Merchant represented the United States in a personal injury and wrongful death action after a government vehicle, operated by a Secret Service Agent, struck and killed a mother of five. The decedent’s youngest daughter witnessed the accident. Ms. Merchant handled all pretrial discovery matters, including deposing the decedent’s minor children. Despite significant challenges, including a video of the accident and the agent’s sworn admission that he was driving above the speed limit at the time of the accident, Ms. Merchant successfully negotiated a settlement.
In Testaverde v. United States, Ms. Merchant represented the United States in a complex medical malpractice and wrongful death action in which the estate of a deceased veteran claimed that physicians at the Veteran’s Administration allegedly failed to diagnose and treat the veteran’s rare bone cancer. Ms. Merchant handled trial preparation, including the deposition of medical experts, and presented the case at trial. After a three-day bench trial, while the court awarded the estate $386,500 in damages for the decedent’s physical pain he suffered because of a delay in diagnosis, the judge also found that the government could not be held liable for all other claims of medical malpractice and wrongful death.
Professional Activities and Accolades
Ms. Merchant has been honored for her exemplary service throughout her career. In 2016, she received the U.S. Department of Justice, Executive Office for United States Attorneys Director’s Award for Superior Performance as an Assistant United States Attorney. Additionally, she received commendations for Outstanding Work on Employment Law Matters from the U.S. Probation Department of the Eastern District of New York in 2002, 2019, 2011, and 2015. In 2013, she received the U.S. attorney’s Office of the Eastern District of New York’s Community Service Award.