Excalibur Aviation v. FAA

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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.
*
The HONORABLE CATHERINE D. PERRY, United States District
Judge for the Eastern District of Missouri, sitting by designation.
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-evading-
review 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.
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