Warbird Adventures, Inc. v. FAA ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20-1291 September Term, 2020
FILED ON: APRIL 2, 2021
WARBIRD ADVENTURES, INC. AND THOM RICHARD,
PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
On Petition for Review of an Action
of the Federal Aviation Administration
Before: PILLARD and WALKER, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
JUDGMENT
We heard this petition on the record from the Federal Aviation Administration, the parties’
briefs, and oral argument. We fully considered the issues and decided that a published opinion is
unnecessary. See D.C. Cir. R. 36(d).
We DENY the petition for review of the FAA’s Emergency Cease and Desist Order.
* * *
Thom Richard, through his company Warbird Adventures, Inc., offers flight instruction in
vintage and WWII military aircraft. In 2020, the FAA ordered Warbird to stop providing paid
flight instruction in one of the company’s planes — the Curtiss-Wright model P-40N — because
it was not certified for that purpose.
Warbird petitions for review of the FAA’s emergency cease and desist order. We deny the
petition because the aircraft is not certified for paid flight instruction and substantial evidence
supports the order.
* * *
Under 14 C.F.R. § 91.315, “[n]o person may operate a limited category civil aircraft
carrying persons or property for compensation or hire.” Warbird’s P-40N is a limited category
aircraft. Although the owner of a limited category aircraft can sometimes obtain an exemption
from § 91.315, Warbird has not requested one. See id. § 11.81.
Instead, Warbird argues that § 91.315 does not prohibit paid flight training. We disagree.
A flight student is a “person.” Id. § 91.315; see also id. § 1.1. When a student is learning to fly
in an airplane, the student is “carr[ied].” Id. § 91.315. And when the student is paying for the
instruction, the student is being carried “for compensation.” Id.
Of course, the FAA could have chosen to make an exception to this rule for flight
instruction. In fact, for other regulations, that’s exactly what it did. See id. § 91.313. But it made
no such exception for § 91.315. And the contrast between the two regulatory schemes reinforces
what the plain language suggests: § 91.315’s broad text includes no exception for a flight student
who is “carr[ied] . . . for compensation.”
Warbird also argues that there is not substantial evidence to support the emergency order,
which depends on a determination by the FAA that “an emergency exists related to safety in air
commerce and requires immediate action.” 49 U.S.C. § 46105(c). For three reasons, considered
together, we disagree. First, after FAA inspectors advised Warbird that § 91.315 prohibits paid
flight instruction in the P-40N, Warbird continued to use the P-40N for paid instruction. Second,
after the FAA memorialized its notice to Warbird in a letter from the FAA Office of Chief Counsel,
and after the FAA initiated an administrative action against Warbird, Warbird continued to
advertise paid flight instruction in the P-40N. And third, Warbird refused to disavow future use
of the P-40N for paid flight instruction, even after repeated communications from the FAA.
Perhaps no one of those reasons alone would be enough, but together they amount to
substantial evidence supporting the FAA’s emergency order. We therefore deny Warbird’s
petition.
* * *
This disposition is unpublished. See D.C. Cir. R. 36(d). We direct the Clerk to withhold
this mandate until seven days after resolution of a timely petition for rehearing or for rehearing en
banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41(b).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
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