The HONORABLE CATHERINE D. PERRY, United States District

*

Judge for the Eastern District of Missouri, sitting by designation.

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No. 96-2169

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Excalibur Aviation, Inc., *

*

Petitioner, * Appeal from the National

* Transportation Safety Board

v. *

* [TO BE PUBLISHED]

Federal Aviation Administration,*

*

Respondent. *

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 Submitted: December 13, 1996

 Filed: January 15, 1997

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

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PER CURIAM.

On April 2, 1996, respondent Federal Aviation Administration issued

an Emergency Order of Revocation revoking the Air Carrier Operating

Certificate and Operations Specifications of petitioner Excalibur Aviation,

Inc. The Emergency Order recited that Excalibur had repeatedly violated

Federal Aviation Regulations, for example, by using unlisted pilots and

pilots who lacked competency and proficiency checks, by using unlisted

aircraft owned by others on for-hire passenger flights, and by conducting

flights under Instrument Flight Rules when Excalibur lacked approved

operations specifications for IFR operations. 
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On April 12, Excalibur timely appealed the Emergency Order to the

National Transportation Safety Board. On May 6, Excalibur commenced this

appeal, seeking judicial review of the FAA's declaration of an emergency

on the ground that Excalibur had sold its aircraft and attempted to

surrender its Operating Certificate in March, and therefore no emergency

existed. We denied a stay of the Emergency Order, and the Board conducted

an expedited administrative hearing, as prescribed in 49 C.F.R. §§ 821.54-

.57. The Board's administrative law judge issued an initial decision

substantially upholding the Emergency Order on the merits. On June 21,

1996, the Board affirmed this initial decision. Without appealing the

Board's affirmance of the Emergency Order on the merits, Excalibur urges

us to reverse the FAA's initial declaration of an emergency. However, this

specific challenge to the Emergency Order is now moot. 

The FAA's decision to issue an emergency revocation order has two

practical effects: first, in an emergency, the FAA need not give the

certificate holder prior notice and an opportunity to be heard before

issuing a revocation order. See 49 U.S.C. § 44709(c); Pastrana v. United

States, 746 F.2d 1447, 1450 (11th Cir. 1984). Second, an emergency

revocation order is effective immediately and remains in effect during the

Board's administrative review proceeding, unless stayed by a reviewing

court. See 49 C.F.R. § 821.30(c); Nevada Airlines, Inc. v. Bond, 622 F.2d

1017, 1019 (9th Cir. 1980). These are important consequences to the

certificate holder, and we agree with the other circuits that have

permitted immediate judicial review of the FAA's declaration of an

emergency. But the consequences are short term. Once the certificate

holder has perfected an administrative appeal and the Board has upheld the

revocation order after a full agency hearing, the emergency has ceased to

exist and the now-former certificate holder can only obtain meaningful

relief if a reviewing court reverses the Board's decision on the merits.

In these circumstances, we agree with the District of Columbia Circuit that
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the emergency declaration has become moot. See Robinson v. National

Transp. Safety Bd., 28 F.3d 210, 213-14 (D.C. Cir. 1994). 

We also agree with the court in Robinson that an "emergency

revocation does not fall within the capable-of-repetition-yet-evadingreview exception to mootness." 28 F.3d at 214. The Board has sixty days

to dispose of the appeal of an emergency revocation order. See 49 U.S.C.

§ 44709(e)(2). That is ample time for the aggrieved certificate holder to

urge a reviewing court to grant a stay of the emergency order because the

FAA has been arbitrary and capricious in declaring an emergency. In this

case, Excalibur waited more than one month before challenging the emergency

declaration and then was denied a stay by this court. 

Because Excalibur only seeks judicial review of the FAA's declaration

that the alleged violations warranted an emergency 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.