### The HONORABLE CATHERINE D. PERRY, United States Distric t * 

### Judge for the Eastern District of Missouri, sitting by desig nation. ___________ No. 96-2169

___________ Excalibur Aviation, Inc., * * Petitioner, * Appeal from the National * Transportation Safety Board v. * * [TO BE PUBLISHED] Federal Aviation Administration,* *

Respondent. *

___________ Submitted: December 13, 1996 Filed: January 15, 1997

___________ Before LOKEN and HANSEN, Circuit Judges, and PERRY, District Judge. *

___________ PER CURIAM. On April 2, 1996, respondent Federal Aviation Administration issued
an Eme rgency Order of Revocation revoking the Air Carrier Operatin g Certificate and Operations Specifications of petitioner Excalibur Aviation , Inc. The Emergency Order recited that Excalibur had repeatedly violated Federa l Aviation Regulations, for example, by using unlisted pilots an d pilots who lacked competency and proficiency checks, by using unliste d aircraft owned by oth ers on for-hire passenger flights, and by conducting fl ights under Instrument Flight Rules when Excalibur lacked approve d operations specifications for IFR operations.

### -2- On Ap ril 12, Excalibur timely appealed the Emergency Order to th e National Transportati on Safety Board. On May 6, Excalibur commenced this appeal, seeking judicial review of the FAA's declaration of an emergency on the gr ound that Excalibur had sold its aircraft and attempted t o surrender its Operating Certificate in March, and therefore no emergency existed. We denied a stay of the Emergency Orde r, and the Board conducted an expedited administrative hearing, as prescrib ed in 49 C.F.R. §§ 821.54- .57. T he Board's administrative law judge issued an initial decisio n substantiallyupholding the Emergency Order on the merits. On June 21 , 1996, the Board affirmed this initial decision. Without appealing th e Board's affirmance of the Emergency Order on the merits, Excalibur urges
us to reverse the FAA's initial declaration of an emergency. However, thi s specific challenge to the Emergency Order is now moot.

The F AA's decision to issue an emergency revocation order has tw o pra ctical effects: first, in an emergency, the FAA need not give th e certifi cate holder prior notice and an opportunity to be heard befor e issuing a revocation order. See 49 U.S.C. § 44709(c); Pastrana v. United States , 7 46 F.2d 1447, 1450 (11th Cir. 1984). Second, an emergenc y revocation order is effective immediately and re mains in effect during the Boar d's administrative review proceeding, unless stayed by a reviewin g court. See 49 C.F.R. § 821.30(c); Nevada Airlin es, Inc. v. Bond , 622 F.2d 1017 , 1019 (9th Cir. 1980). These are important consequences to th e certific ate holder, and we agree with the other circuits that hav e permit tedimmediate judicial review of the FAA's declaration of a n emerg ency. But the consequences are short term. Once the certificat e holder has perfected an administrative appeal and the Board has upheld the revocation order afte r a full agency hearing, the emergency has ceased to exist and the now-former certificate holder can only obtain meaningfu l relief if a reviewing court reverses the Board's decision on the merits. In these circumstances, we agree with the District of Columbia Circuit tha t

### -3-

the emergency declaration has become moot. See Robinson v. Nationa l Transp. Safety Bd. , 28 F.3d 210, 213-14 (D.C. Cir. 1994).

We also agree with the court in Robinsonthat an "emergenc y revocationdoes not fall within the capable-of-repetition-yet-evading

review exception to m ootness." 28 F.3d at 214. The Board has sixty days to dispose of the app eal of an emergency revocation order. See 49 U.S.C. § 44709(e)(2). That is ample time for the aggri eved certificate holder to urge a reviewing cour t to grant a stay of the emergency order because the FAA has been arbitrar y and capricious in declaring an emergency. In this case, Excalibur waited more than one month before challenging the emergenc y declaration and then was denied a stay by this court. Because Excalibur only seeks judicial review of the FAA's decla ration that the alleged violations warranted an emergen cy order, the Petition for Review is dismissed as moot. Excalibur's Motion To Strike is denied.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.