1I adopt and incorporate the factual and procedural history

set forth in the June 12, 2006, Order (document no. 20).

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Robert P. DesRoches

v. Civil No. 05-cv-088-B

John E. Potter, Postmaster

General, United States Postal Service

O R D E R

Judge Barbadoro granted judgment on the pleadings but also

afforded plaintiff an opportunity to file an amended complaint to

set forth viable causes of action. Plaintiff now seeks to file

an amended complaint with three causes of action: (1)redress

under the Accardi Doctrine; (2) a claim under the Administrative

Procedure Act (APA); and (3) a claim for de novo review under the

Rehabilitation Act. He also seeks to amend his answer to the

counterclaim. Defendant objects to the first two claims as

“futile” and to the third claim and to the counterclaim answer

amendment as “untimely.” See Aponte-Torres v. University of

Puerto Rico, 445 F.3d 50, 58 (1st Cir. 2006).1

1. Accardi Claim

The defendant claims that the alleged “Accardi” claims count

is futile because it is asserted against the United States Postal

Case 1:05-cv-00088-PB Document 31 Filed 11/28/06 Page 1 of 4
2

Service (“USPS”). Defendant asserts that Accardi applies, if at

all, to claims against the Equal Employment Opportunity

Commission (“EEOC”), not against USPS. 

The “Accardi Doctrine” is a 

“judicially-evolved rule ensuring fairness in

administrative proceedings” by requiring “that the

rules promulgated by a federal agency, which regulate

the rights of interests of others, are controlling upon

the agency.” Montilla v. INS, 926 F.2d 162, 166, 168

(2d Cir. 1991).

Clary v. United States, 85 F.3d 1041, 1047 (2d Cir. 1996). The

essence of the “Accardi Doctrine” is simply that an agency must

comply with its own regulations. If it does not do so, then the

agency may be sued. The cases cited by the parties are suits

against agencies which did not follow their own regulations. 

Plaintiff has not cited, and I have not found, any Accardi claim

against an agency which was a litigant before the allegedly

offending agency rather than against the latter. The Accardi

claim against USPS is futile. The motion (document no. 26) is

denied as to Count I.

2. APA Claim

Defendant, in one brief paragraph, states that the

plaintiff’s APA claim, like the Accardi claim is futile for the

same reason. Defendant cites (or miscites) 5 U.S.C. § 702 and

703. 5 U.S.C. § 703 does not contain the language in defendant’s

memorandum. Defendant states that 5 U.S.C. § 703 permits suits

Case 1:05-cv-00088-PB Document 31 Filed 11/28/06 Page 2 of 4
2I do not understand what defendant intended by the phrase

“agency whose agency is challenged . . . .” Document no. 29, p.

8.

3

against “the United States, the agency whose agency is

challenged, or its appropriate official.” Document no. 29, p. 8. 

Plaintiff’s second count challenges the February 10, 2005,

decision of the EEOC under the APA. Document no. 27, Amended

Complaint, pp. 14-15. The proper party defendant is “the United

States, the agency by its official title, or the appropriate

officer.” 5 U.S.C. § 703. Neither party has addressed in

argument what is meant by “the agency”2 in the context of this

statute nor cited to any legal authorities. “It is not the

obligation of this court to research and construct the legal

arguments open to parties, especially when they are represented

by counsel.” Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 668

(7th Cir. 1998), cert, denied, 119 S.Ct. 890 (1992). “[I]t is

not this court’s job to research the law to support . . . [a

party’s] argument . . . .” Busby v. Union Pacific R. Co., 4 F.3d

639, 642 (8th Cir. 1993). The motion to amend (document no. 26)

is granted as to Count II.

3. De Novo Review

It appears clear that the de novo review claim is the claim

Judge Barbadoro had in mind in his two orders and as to which he

Case 1:05-cv-00088-PB Document 31 Filed 11/28/06 Page 3 of 4
4

granted plaintiff permission to file. For that reason and the

reasons set forth by plaintiff, the claim is not untimely and the

motion is granted as to Count III.

4. Amended Answer to Counterclaim

This case has not progressed beyond a decision on the

pleadings. Defendant is not prejudiced by the amendment which is

allowed.

The motions (document nos. 26 and 27) are granted to the

extend as set forth above.

SO ORDERED.

 /s/ James R. Muirhead 

James R. Muirhead

United States Magistrate Judge

November 28, 2006

cc: Lawrence M. Edelman, Esquire

T. David Plourde, Esquire

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