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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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).