Flight Training - July 2021 - 24

PREFLIGHT INDUSTRY NEWS
AOPA 'DISAPPOINTED' IN RULING
COURT UPHOLDS FAA ORDER IN WARBIRD FLIGHT TRAINING CASE
BY DAN NAMOWITZ
a Curtiss P-40N Warhawk, for compensated flight training
without a required exemption. The court denied a petition
by Warbird Adventures and its owner for review of the
FAA's cease-and-desist order. The P-40N " is not certified for
paid flight instruction and substantial evidence supports the
A FEDERAL COURT DECLINED TO LIFT A CEASE-AND-DESIST
order issued by the FAA against a warbird flight training
company in a case that could have implications for a wide
variety of flight instruction provided to owners in their own
aircraft. AOPA and five other aviation organizations had filed
a " friend of the court " (amicus curiae) brief in the case, Warbird
Adventures, Inc. et al. v. FAA, in which the FAA alleged
that the company was operating a limited category aircraft,
order, " the court said in a two-page judgment.
" AOPA is disappointed by this decision and its finding
that when a flight student is paying for instruction, the
student is being carried for compensation. This departs
from the long-standing premise that the compensation a
flight instructor receives for instruction is not compensation
for piloting the aircraft, but rather is compensation for the
instruction, " said Justine Harrison, AOPA's general counsel.
Implications of rulings in the case could be far-reaching
for flight instruction. Although the decision is " unpublished, "
meaning the court saw no precedential value in it, the decision
may still be cited in future cases that could then set precedent
binding on FAA proceedings held before judges of the NTSB,
the Department of Transportation, and federal district courts.
aopa.org/pilot/warbirdruling
dan.namowitz@aopa.org
ANSWERING YOUR QUESTIONS
BY JUSTINE HARRISON, AOPA GENERAL COUNSEL
MANY AOPA MEMBERS HAVE BEEN REACHING OUT TO US
about the recent court decision to allow an FAA
emergency cease-and-desist order to stand against
Warbird Adventures. The decision leaves many questions
and concerns in its wake. It's useful to analyze the decision
from two perspectives: immediate impacts, and potential
future impacts.
First, it's important to know that the Warbird Adventures
case started when the U.S. Court of Appeals for the
District of Columbia Circuit was asked to review an FAA
emergency cease-and-desist order received by the operator
of a limited category aircraft, which was providing flight
instruction without an exemption to FAR 91.315. A limited
category aircraft is an aircraft not designed to meet current
FAA certification requirements; many warbirds fall into
this category. The court's decision declining to review the
emergency cease-and-desist order is just two pages.
Here are the most common questions we have heard
and AOPA's current perspective.
24 FLIGHT TRAINING JULY 2021
How does the decision immediately impact general
aviation?
If you provide instruction for compensation in a limited
category aircraft, regardless of who owns the aircraft, you
need an exemption from FAR 91.315 to do so. The court's
decision does not differentiate between whether the student
owns the airplane or not, so until the FAA officially
says otherwise, all training in limited category aircraft
requires an exemption.
How will the decision impact GA in the future, particularly
flight training?
It's too soon to tell. AOPA and other associations were
involved in this case early because of concerns about
potential downstream impacts of such a decision. We filed
a " friend of the court " (amicus curiae) brief in late 2020
cautioning the court to avoid using broad language in its
decision. Unfortunately, the decision contains an analysis
stating that a student paying for flight instruction is " being
carried for compensation. "
http://www.aopa.org/pilot/warbirdruling
Flight Training - July 2021

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