1 The Accardi doctrine provides that “[a]n agency has an

obligation to abide by its own regulations.” Rotinsulu v.

Mukasey, 515 F.3d 68, 72 (1st Cir. 2008) (citing United States ex

rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-67 (1954)).

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert P. DesRoches,

Plaintiff

v. Civil No. 08-cv-363-SM

Opinion No. 2009 DNH 095

Naomi C. Earp, Chair,

Equal Employment

Opportunity Commission,

Defendant

O R D E R

Robert DesRoches seeks relief from a decision of the Equal

Employment Opportunity Commission (“EEOC”). The Commission

denied his petition to enforce a previous EEOC order awarding him

substantial damages and prospective equitable relief on a

discrimination claim against his former employer, the United

States Postal Service (“USPS”). DesRoches asserts claims under

the Accardi doctrine,1 for alleged violations of 26 C.F.R. §

1614.503(c) (Count I), and under the Administrative Procedure Act

(“APA”) (Count II). Before the court are defendant’s motion to

dismiss or for summary judgment, and plaintiff’s cross motion for

judgment on the pleadings. Each motion is duly opposed. For the

reasons given, defendant’s motion is granted and plaintiff’s

motion is necessarily denied.

Case 1:08-cv-00363-SM Document 25 Filed 06/25/09 Page 1 of 8
2 Because the USPS action on which the EEOC decision was

based took place in April of 1994, it is unclear why relief was

awarded retroactive to April of 1992. The EEOC now says that the

1992 date was a typographical error. DesRoches disagrees. 

Because it is not material to this case, there is no need to

resolve that issue.

2

Legal Standard

A motion to dismiss for “failure to state a claim upon which

relief can be granted,” FED. R. CIV. P. 12(b)(6), requires the

court to conduct a limited inquiry, focusing not on “whether a

plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974). “[A] complaint is properly

dismissed for failure to state a claim ‘only if the facts lend

themselves to no viable theories of recovery.’” Garnier v.

Rodríguez, 506 F.3d 22, 26 (1st Cir. 2007) (quoting Phoung Luc v.

Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007)).

Background

The facts of this case have been detailed in several orders

in a related case, DesRoches v. Potter, No. 05-cv-88-PB, so are

described here only in brief. In 1998, DesRoches obtained a

favorable decision from the EEOC on a discrimination claim he

brought against the USPS. The EEOC denied the USPS’s request for

reconsideration in 2000 and ordered the USPS to award DesRoches

“a full-time regular distribution clerk, PS-05, position

retroactive to April 30, 1992”2 along with “appropriate back pay

Case 1:08-cv-00363-SM Document 25 Filed 06/25/09 Page 2 of 8
3 That was thirty days after the USPS offered DesRoches the

position he considered non-compliant with the 2000 EEOC order.

3

and benefits.” (Pl.’s Obj. (document no. 10), Ex. 3, at 2.) 

More than two years later, the USPS had still not remitted any

back pay. In August of 2002, the USPS offered DesRoches a

position, but he declined on grounds that it was not equivalent

to the position he was entitled to under the EEOC’s order. After

the USPS offered DesRoches the allegedly non-compliant position,

he filed a petition for enforcement of the 2000 order with the

EEOC. 

In October of 2004, while DesRoches’s petition for

enforcement was being adjudicated, the USPS offered him “a fulltime regular distribution clerk, PS-05, position,” i.e., a

position that, he concedes, was fully compliant with the 2000

EEOC order. He declined that position as well. Then, in January

of 2005, the USPS paid DesRoches $317,325.25, representing back

pay and interest from April 30, 1992, through September 23,

2002.3

In February of 2005, the EEOC issued a decision on

DesRoches’s petition for enforcement. It found that “[t]he

agency has submitted documentation demonstrating that petitioner

was assigned to a full-time regular distribution clerk position

prior to April 30, 1994” and further found that “petitioner is

Case 1:08-cv-00363-SM Document 25 Filed 06/25/09 Page 3 of 8
4 In its decision on DesRoches’s petition for enforcement,

the EEOC informed him of his right to file a civil action:

This decision of the Commission is final, and there is

no further right of administrative appeal . . . . You

have the right to file a civil action in an appropriate

United States District court . . . . If you file a

civil action, you must name as the defendant . . . the

person who is the official agency head or department

head . . . . Failure to do so may result in the

dismissal of your case in court.

(Pl.’s Obj, Ex. 5, at 3.)

5 That was thirty days after the USPS offered DesRoches a

position that he concedes complied with the 2000 EEOC order.

4

not entitled to back pay and benefits” because he “ceased coming

to work as of January 7, 1994,” and was discharged for that

reason, and his discharge was upheld on appeal. (Pl.’s Obj, Ex.

5, at 2.) Accordingly, the EEOC concluded: “[W]e find that the

agency has complied with all provisions in our Order. 

Petitioner’s petition for enforcement is denied.” (Id. at 3.) 

Essentially, the EEOC declined to enforce its 2000 order not

because the USPS had fully complied with its terms, but because

the EEOC decided that it had erred in issuing the order in the

first place, so declined to enforce it.

DesRoches then filed suit in this court against the USPS,4

asking the court to vacate the 2005 EEOC decision and enforce the

2000 order (with additional back pay through October 31, 20045). 

Case 1:08-cv-00363-SM Document 25 Filed 06/25/09 Page 4 of 8
6 A “trial de novo” is defined as “[a] new trial on the

entire case – that is, on both questions of fact and issues of

law – conducted as if there had been no trial in the first

instance.” BLACK’S LAW DICTIONARY 1544 (8th ed. 2004) (citations

omitted, emphasis added).

5

The USPS, in turn, filed a counterclaim for unjust enrichment,

seeking recovery of the sum already paid to DesRoches, which it

now thinks it should not have paid, given the EEOC’s comments in

declining to enforce the 2000 order. Judge Barbadoro granted the

USPS judgment on the pleadings in that case, on grounds that the

relief DesRoches sought was not available against the USPS under

the governing statutes and regulations. DesRoches, however, was

allowed, but not required, to amend his complaint to assert a

claim for the one form of relief he was statutorily entitled to

pursue, de novo review of his discrimination claim against the

USPS. 

DesRoches did amend his complaint, and sought de novo

review.6 He also asserted claims against the USPS under the

Accardi doctrine and the APA. The essential aspect of those

claims was DesRoches’s assertion that the EEOC violated the

Accardi doctrine by failing to abide by its own regulations (in

its 2005 decision) when it changed the substantive result of its

2000 decision, or diminished the relief ordered therein, and that

the EEOC violated the APA by issuing a decision that was

“arbitrary, capricious, an abuse of discretion, [and] otherwise

Case 1:08-cv-00363-SM Document 25 Filed 06/25/09 Page 5 of 8
6

not in accordance with law,” or that was “without observance of

procedure required by law.” The Accardi and APA claims were both

disallowed by the Magistrate Judge as futile, because they were

brought against the USPS rather than against the EEOC — the

agency that, according to DesRoches’s allegations, failed to

abide by its own regulations and acted in an arbitrary and

capricious manner. DesRoches moved to amend his complaint a

second time, to add the EEOC as a defendant, but Judge Barbadoro

denied the motion. This separate suit against the EEOC followed.

Discussion

In her motion to dismiss, defendant argues that: (1)

plaintiff has failed to state a claim under the Accardi doctrine;

(2) plaintiff has failed to state a claim under the APA; and (3)

plaintiff’s attack on the 2005 EEOC decision was mooted by his

own election to pursue de novo review of his discrimination

claim. Defendant’s third argument is dispositive.

In this case, plaintiff seeks an order vacating the 2005

EEOC decision and enforcing the 2000 EEOC administrative order. 

As defendant correctly points out, however, the 2005 decision has

been rendered a legal nullity by DesRoches’s invocation of his

right to de novo review of the EEOC’s final disposition of his

claim. See BLACK’S, supra note 7, at 1544. The 2005 EEOC

decision has no legal effect, and the issues raised in

Case 1:08-cv-00363-SM Document 25 Filed 06/25/09 Page 6 of 8
7 It should be noted, in passing, that even if not moot,

plaintiff’s claims are probably non-starters in that his only

option for review of the EEOC’s administrative adjudication was

the one he elected — de novo review. See, e.g., Hall v. EEOC,

456 F. Supp. 695, 700-701, (N.D. Cal. 1978).

8 Among other things, plaintiff argues that the fact that

Judge Barbadoro reached his claim in DesRoches v. Potter before

this court reached the Accardi and APA claims in this case is

merely an “accident of timing,” and that “a favorable decision in

this action moots the parallel action in DesRoches v. Potter –

not the other way around.” He also argues that the de novo

review he sought is not an adequate remedy for his injury, but is

precisely the injury he claims to have suffered. 

7

DesRoches’s amended complaint will be decided, de novo, in the

related case pending before Judge Barbadoro.

Because the 2005 decision has been effectively vacated,

plaintiff’s current request to vacate that decision is moot,

though the discrimination issues presented on the merits are

subject to pending de novo review in the case before Judge

Barbadoro. Because plaintiff’s Accardi and APA claims are moot,

he has failed to state a claim on which relief can be granted,

and defendant is entitled to dismissal.7

Plaintiff offers a number of arguments against the

proposition that his Accardi and APA claims are moot,8 but none

is sufficient to overcome the factual reality that plaintiff

elected to pursue de novo review, and the legal reality that de

novo review requires Judge Barbadoro to resolve the presented

issues on the merits, “as if there had been no [EEOC

Case 1:08-cv-00363-SM Document 25 Filed 06/25/09 Page 7 of 8
8

determination] in the first instance.” BLACK’S, supra note 7, at

1544. Plaintiff is necessarily charged with knowing that under

applicable statutes and regulations, de novo review in a federal

court means precisely that.

Conclusion

For the reasons given, defendant’s motion to dismiss

(document no. 6) is granted and plaintiff’s motion for judgment

on the pleadings (document no. 11) is necessarily denied. The

clerk of the court shall enter judgment in accordance with this

order and close the case.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 25, 2009

cc: Leslie H. Johnson, Esq.

T. David Plourde, Esq.

Case 1:08-cv-00363-SM Document 25 Filed 06/25/09 Page 8 of 8