The opinion
Case: 12-60644 Document: 00512720101 Page: 1 Date Filed: 08/01/2014
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 00512720101 Page: 2 Date Filed: 08/01/2014
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).