     Case: 12-60644      Document: 00512727807         Page: 1    Date Filed: 08/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                        _________                   United States Court of Appeals
                                                                             Fifth Circuit


                                      No. 12-60644
                                                                           FILED
                                                                      August 1, 2014
                                       __________
                                                                      Lyle W. Cayce
                                                                           Clerk

ENTERGY MISSISSIPPI, INCORPORATED,

              Petitioner−Cross Respondent,

versus

NATIONAL LABOR RELATIONS BOARD,

              Respondent−Cross Petitioner.


                               _______________________

           Petition for Review and Cross-Application for Enforcement
                of an Order of the National Labor Relations Board
            NLRB Nos. 15-CA-017213, 15-CA-018131, 15-CA-018136
                             _______________________



Before DAVIS, SMITH, and ELROD, Circuit Judges.
PER CURIAM: ∗


       We are petitioned to review an order of the National Labor Relations



       ∗
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 12-60644       Document: 00512727807         Page: 2     Date Filed: 08/08/2014


                                       No. 12-60644

Board (the “Board”) regarding a unit-clarification petition by petitioner cross-
respondent Entergy Mississippi, Incorporated (Entergy”). The Board moves
this court to vacate the order and remand for further consideration because,
under NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board lacked a
quorum. The Board also requests issuance of the mandate forthwith so that it
“may promptly exercise jurisdiction over the matter.” Entergy opposes the
motion “[a]nd, instead, . . . respectfully requests that the Court lift the stay of
this case and consider the statutory arguments underlying this appeal, only
considering the constitutional questions if necessary, in accordance with” D.R.
Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013).
       The Board’s request is consistent with our practice where the Board has
acted without lawful authority. For example, in Bentonite Performance Min-
eral LLC v. NLRB, 382 F. App’x 402, 403 (5th Cir. 2010) (per curiam), citing
New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), we vacated and
remanded for further proceedings.             Almost every circuit has vacated and
remanded in light of Noel Canning, 1 and we see no reason to depart from that
practice.
       The motion to vacate and remand is GRANTED. The petition for review
is GRANTED, the order is VACATED, and this matter is REMANDED for
further proceedings as needed. The motion to issue the mandate forthwith is
GRANTED.




       1 See NLRB v. Salem Hosp., No. 12-3632 (3d Cir. July 3, 2014); NLRB v. Dover Hospi-
tality Servs., Inc., No. 13-2307 (2d Cir. July 2, 2014); DirecTV Holdings, LLC v. NLRB,
Nos. 12-72526, 12-72639 (9th Cir. July 2, 2014); Int’l Union of Operating Eng’rs, Local 627 v.
NLRB, Nos. 13-9547, 13-9564 (10th Cir. July 2, 2014); Relco Locomotives, Inc. v. NLRB,
No. 13-2722 (8th Cir. July 1, 2014).

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