The D.C. Circuit issued four opinions last week; two were in cases related to admin law. (The others were a criminal case and a Foreign Sovereign Immunities Act case). The most interesting admin law case addressed when the National Labor Relations Board (NLRB) can find a violation based on conduct not expressly included in the General Counsel’s complaint.

The admin-law-adjacent case was a straightforward application of standing principles. A developer wanted to build housing directly under an airport’s approach path. The city that operates the airport denied the developer’s petition. During the process of the city’s denial, the FAA had sent letters to the city stating that approving the housing development would violate a condition of the airport’s federal funding grant. The developer filed a petition for review seeking to compel the FAA to vacate and withdraw those letters. The D.C. Circuit held that the developer provided nothing but speculation that abrogation of the letters would alter the city’s independent decision to disapprove the development, and had therefore failed to show redressability.

Practice note: The D.C. Circuit also criticized the developer for failing to “comply with [the] requirement that it argue standing, and furnish evidence of standing, in its opening brief,” as required by the local rules. So don’t do that!

In the NLRB case, Vermont Information Processing v. NLRB, the Board had upheld violations based on a company firing four employees who had shared salary information (which is protected activity under the National Labor Relations Act). The facts, in brief, involve an employee creating and circulating a salary-sharing spreadsheet, that employee being fired, and lots of “colorful messages” between employees about all of these events. The D.C. Circuit upheld the Board’s violation finding regarding the termination of the employee who created the spreadsheet. For another three employees, however, the court held that the conduct on which the Board based the violation was too different from the conduct charged by the General Counsel.

• The complaint alleged a violation based on the employees’ involvement in protected conduct of creating and disseminating the spreadsheet.
• In finding a violation, the ALJ “expanded the relevant [protected] conduct” to include instant messages about the spreadsheet and the termination of the employee who created it. The D.C. Circuit said this was fine: the spreadsheet and the instant messages about it were inextricably linked.
• In finding a violation, however, the Board expanded the protected conduct to include online chats “about workplace conditions.” And that, the court held, “stretched the charged conduct beyond its breaking point,” and impaired/precluded the employer’s presentation of evidence at the hearing. Therefore, the Board violated administrative due process principles when it rested the violations on that ground.