DC COURT OF APPEALS UPHOLDS FAA EMERGENCY CEASE AND DESIST ORDER
May 13, 2021
On April 2, 2021, the U.S. Court of Appeals for the D.C. Circuit issued a decision on a Petition for Review in the case of Warbird Adventures Inc. v. Federal Aviation Administration, denying Warbird Adventure’s request for the court to overturn FAA’s emergency cease and desist order. Warbird Adventures, a company in Kissimmee, FL, offers flight instruction in vintage and WWII military aircraft, such as the North American T-6 Texan and the Curtiss-Wright model P-40N Warhawk. In July 2020, the FAA issued an emergency cease and desist order, prohibiting Warbird from providing paid flight instruction in the P-40N because it was not certified for that purpose. In the cease and desist order, the FAA explained that is had previously advised Warbird that providing flight instruction in a limited category aircraft constituted a violation of 14 C.F.R. § 91.315, as it prohibits “operat[ing] a limited category civil aircraft carrying persons or property for compensation or hire.” This is based on the FAA’s “Morris Interpretation” issued in 2014 which states that no person can provide flight training for hire in a limited category aircraft unless they obtain an exemption under 14 C.F.R. Part 11. The order also provided that any instructor paid to provide flight training “is operating the aircraft for compensation or hire,” regardless of whether the instructor is acting as a pilot in command.
In its Petition for Review, Warbird first challenged FAA’s interpretation of § 91.315, claiming that the court was not required to defer to the FAA’s Morris Interpretation because the plain language of the regulation merely prohibits “carrying persons or property for compensation or hire” and importantly does not list “flight training” or “student instruction” among its prohibitions. Furthermore, Warbird argued that the Morris Interpretation conflicts with prior FAA legal interpretations, specifically a 1995 interpretation that states that the “compensation a certificated flight instructor receives for flight instruction is not compensation for piloting the aircraft but is rather compensation for the instruction.” Finally, Warbird also challenged the emergency nature of the order, claiming that FAA had not provided sufficient evidence to show that an actual emergency existed.
The court, however, disagreed with Warbird’s arguments on both points. The court took a very strict view of the language, finding that student pilots are “people” being “carried” in an aircraft “for compensation”, and that FAA’s failure to include an exception for flight instruction under § 91.315 was intentional based on exemptions that were included in other similar regulations, such as § 91.313. The court also found that FAA’s determination of an emergency was warranted given Warbird’s failure to heed FAA’s initial warnings prior to the emergency order, and the fact that Warbird continued to advertise flights in the P-40N after FAA initiated administrative action. For these reasons, the court denied Warbird’s petition and upheld FAA’s emergency cease and desist order.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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