Federal Court Decision: Flight training is carrying passengers for hire

[flyingron]

In a nutshell: The FAA has ordered Warbird Adventures to stop providing flight instruction in a P-40 because it holds only a limited airworthiness certificate and 91.315 bans carrying passengers or property for hire. The court (US Court of Appeals for DC) held that the rule means how it reads despite the FAA's previous interpretations that flight instruction is not carrying the student for hire.

Attached are the decision itself and the amicus brief that the EAA, IAC, and AOPA jointly filed on the subject.

 

[RyanB]

 

[Palmpilot]

So does the FAA think that pilots should fly these planes without having received any type-specific instruction?

 

[Bob Noel]

So does the FAA think that pilots should fly these planes without having received any type-specific instruction?

Probably better to ask the court (US Court of Appeals for DC).... maybe.

 

[jrcox19]

Isn't this like the 3rd thread about this?

 

[MauleSkinner]

Although the owner of a limited category aircraft can sometimes obtain an exemption from § 91.315, Warbird has not requested one.

I’d also add that the FAA has considered some flight instruction to be “for hire” for at least 40 years...

91.409(b) Except as provided in paragraph (c) of this section, no person may operate an aircraft carrying any person (other than a crewmember) for hire, and no person may give flight instruction for hire in an aircraft which that person provides, unless within the preceding 100 hours of time in service the aircraft has received an annual or 100-hour inspection and...

Granted, they differentiate carrying persons for hire from giving flight instruction for hire, but it seems clear to me that the FAA isn’t “suddenly” considering the exact type of instruction provided by Warbird Adventures to be “for hire”.

 

[Palmpilot]

Probably better to ask the court (US Court of Appeals for DC).... maybe.

I'm not sure that the court would know what the FAA's motivation was for initiating this case.

 

[Fearless Tower]

So does the FAA think that pilots should fly these planes without having received any type-specific instruction?

Not at all.

The FAA is cracking down a very specific group of warbird operators who are essentially trying to offer scenic flights in non standard category airplanes under the guise of calling it flight instruction.

This isn’t about certificated pilots getting training in warbirds. It’s about taking people with no experience at all up for a paid ride while calling it ‘flight training’

 

[flyingron]

The problem is it sets precedent. The FAA didn't argue, nor did the court address, that the flight training aspect of it was a sham. They argued that flight training is carrying passengers for hire and that is NOW officially the law for at least the fourth circuit, and since the FAA cases likely end up there, the rule of the land.

What we have here is an example of the FAA wanting something, having the authority to write their own "law" on the subject and prosecute it, and still failing to get it right in a concise manner.

 

[jssaylor2007]

Curious how this will affect things like training in an S-LSA, or receiving instruction for a light sport cert.

 

[Lindberg]

The problem is it sets precedent. The FAA didn't argue, nor did the court address, that the flight training aspect of it was a sham. They argued that flight training is carrying passengers for hire and that is NOW officially the law for at least the fourth circuit, and since the FAA cases likely end up there, the rule of the land.

What we have here is an example of the FAA wanting something, having the authority to write their own "law" on the subject and prosecute it, and still failing to get it right in a concise manner.

Bad facts make bad law. Was it the 4th Circuit or the DC Circuit?

 

[flyingron]

Oops, you're right DC Circuit.

 

[Palmpilot]

The problem is it sets precedent. The FAA didn't argue, nor did the court address, that the flight training aspect of it was a sham. They argued that flight training is carrying passengers for hire and that is NOW officially the law for at least the fourth circuit, and since the FAA cases likely end up there, the rule of the land....

Does this imply that flight schools will now be required to get operating certificates?

 

[MauleSkinner]

Does this imply that flight schools will now be required to get operating certificates?

And flight instructors will need second class medical, and...and...and

 

[Half Fast]

And flight instructors will need second class medical, and...and...and

...and Sport CFIs are screwed. Can instruction still be given in LSAs at all?

 

[flyingron]

Flight instruction is still exempted in 119.1.

Things that are affected by it:

Flight instruction for formation training (91.111)
Flight instruction in experimental (91.319)
Requirements for floatation devices and landing lights (91.205).
It effectively means that a those without a commercial/ATP pilot certificate may not serve as pilot in command during paid instruction (61.113)
Adding additional lease requirements for flight instruction leasbacks (91.23).



I disagree with the judges decision. In fact, the FAA has made a distinction between flight instruction "for hire" and carrying persons for hire. 91.409 specifically calls out both. If you accept the decision, that reg now has a redundant clause in it. Similar gobbledygook in 91.319 with regard to experimentals.

 

[Lindberg]

The court (US Court of Appeals for DC) held that the rule means how it reads despite the FAA's previous interpretations that flight instruction is not carrying the student for hire.

Did anyone mention these prior interpretations to the court? The fact that it doesn't mention them, and that the decision is designated as unpublished (i.e. the judges think it has not precedential value) makes me think that no one did.

 

[Half Fast]

It effectively means that a those without a commercial/ATP pilot certificate may not serve as pilot in command during paid instruction (61.113)

So Sport CFIs are screwed, right?

And can you still use an S-LSA for SP instruction? I believe that S-LSAs can't be used to transport people for hire, but I haven't researched that yet.

 

[Tarheelpilot]

The problem is it sets precedent. The FAA didn't argue, nor did the court address, that the flight training aspect of it was a sham. They argued that flight training is carrying passengers for hire and that is NOW officially the law for at least the fourth circuit, and since the FAA cases likely end up there, the rule of the land.

What we have here is an example of the FAA wanting something, having the authority to write their own "law" on the subject and prosecute it, and still failing to get it right in a concise manner.

don’t worry. As long as you don’t upset anyone at the FAA and act humble you’ll be fine.

 

[Half Fast]

I doubt this will go beyond the crackdown on warbird airlines. The FAA doesn’t even have the manpower to review a 141 application from every part 61 flight school out there. Nor do they seem to care.

Yeah, but if a flight school ignores it and gets on the FAA’s shmit list, the FAA now has a very big hammer they can use against the school. Think they won’t?

 

[Half Fast]

Legitimate flight instruction isn’t the problem, as a matter of fact it’s about the safest hours in GA.

These warbird airlines are a problem, as evidenced by the B-17 crash a few years ago.

I actually see it as a good thing for normal category part 91 as the FAA’s limited enforcement resources are focused on a small corner of aviation.

But the ruling is not limited to the warbird thrill rides.

 

[Lowflynjack]

Not at all.

The FAA is cracking down a very specific group of warbird operators who are essentially trying to offer scenic flights in non standard category airplanes under the guise of calling it flight instruction.

This isn’t about certificated pilots getting training in warbirds. It’s about taking people with no experience at all up for a paid ride while calling it ‘flight training’

Agree. This is people bending the rules on purpose. The same thing happened in ultralights. A 2-seat ultralight was for training only, so every time you took someone flying it was a 'training flight'. Now 2-seat ultralights are LSA.

 

[flyingron]

Now 2-seat ultralights are LSA.

Some are. Only the ones converted in now-closed window became legal LSAs. Now the rest are illegal no matter what excuse you invent to fly them.

 

[flyingron]

Legitimate flight instruction isn’t the problem, as a matter of fact it’s about the safest hours in GA.

These warbird airlines are a problem, as evidenced by the B-17 crash a few years ago.

I understand that, but the "it's illegal if we say it's illegal but OK if we say it's OK" isn't really in the spirit of the administrative procedures act. They could have prosecuted this on the argument that this wasn't "legitimate" flight instruction, but they didn't, they invented something else to apply which opens the can of worms I mentioned.

As others have pointed out, everything is fine with the FAA winking and nodding at "legitimate flight instruction" until you get someone who ****es them off or you get some rogue FSDO rep and then when it comes down to the ALJ, the NTSB< and now the Federal Courts, you have a precedent that says "this is what we have determined the rules to mean."

 

[Salty]

Legitimate flight instruction isn’t the problem, as a matter of fact it’s about the safest hours in GA.

These warbird airlines are a problem, as evidenced by the B-17 crash a few years ago.

I actually see it as a good thing for normal category part 91 as the FAA’s limited enforcement resources are focused on a small corner of aviation.

So how will people get legitimate training in a warbird now?

 

[denverpilot]

I almost want someone to send a very detailed question about all the stuff affected to the Chief Cousel’s office — just to see what BS response comes back and changes even more law. Hahah.

Or... on second thought... don’t. LOL.

 

[Half Fast]

So how will people get legitimate training in a warbird now?

Join the military?

 

[MauleSkinner]

So how will people get legitimate training in a warbird now?

Via providers who have a 91.315 exemption.

 

[Lindberg]

I understand that, but the "it's illegal if we say it's illegal but OK if we say it's OK" isn't really in the spirit of the administrative procedures act.

It's not the spirit of anything, and it won't fly. Can someone link to these prior interpretations where the FAA says the opposite of what the court here said?

 

[Half Fast]

It's not the spirit of anything, and it won't fly. Can someone link to these prior interpretations where the FAA says the opposite of what the court here said?

Sport CFI:

§ 61.403 What are the age, language, and pilot certificate requirements for a flight instructor certificate with a sport pilot rating?

To be eligible for a flight instructor certificate with a sport pilot rating you must:


(a) Be at least 18 years old.


(b) Be able to read, speak, write, and understand English. If you cannot read, speak, write, and understand English because of medical reasons, the FAA may place limits on your certificate as are necessary for the safe operation of light-sport aircraft.


(c) Hold at least a sport pilot certificate with category and class ratings or privileges, as applicable, that are appropriate to the flight instructor privileges sought. ​

A sport pilot certificate does not allow you to carry persons for hire. The court says "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.”"

The court just, perhaps inadvertently, forbade Sport CFIs from providing instruction.

 

[Lindberg]

Sport CFI:

§ 61.403 What are the age, language, and pilot certificate requirements for a flight instructor certificate with a sport pilot rating?

To be eligible for a flight instructor certificate with a sport pilot rating you must:


(a) Be at least 18 years old.


(b) Be able to read, speak, write, and understand English. If you cannot read, speak, write, and understand English because of medical reasons, the FAA may place limits on your certificate as are necessary for the safe operation of light-sport aircraft.


(c) Hold at least a sport pilot certificate with category and class ratings or privileges, as applicable, that are appropriate to the flight instructor privileges sought. ​

A sport pilot certificate does not allow you to carry persons for hire. The court says "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.”"

The court just, perhaps inadvertently, forbade Sport CFIs from providing instruction.

Giving instruction is not a privilege of your sport pilot certificate, it's a privilege of your instructor certificate.

§ 61.413 What are the privileges of my flight instructor certificate with a sport pilot rating?
(a) If you hold a flight instructor certificate with a sport pilot rating, you are authorized, within the limits of your certificate and rating, to provide training and endorsements that are required for, and relate to -

(1) A student pilot seeking a sport pilot certificate;

(2) A sport pilot certificate;

(3) A flight instructor certificate with a sport pilot rating;

(4) A powered parachute or weight-shift-control aircraft rating;

(5) Sport pilot privileges;

(6) A flight review or operating privilege for a sport pilot;

(7) A practical test for a sport pilot certificate, a private pilot certificate with a powered parachute or weight-shift-control aircraft rating or a flight instructor certificate with a sport pilot rating;

(8) A knowledge test for a sport pilot certificate, a private pilot certificate with a powered parachute or weight-shift-control aircraft rating or a flight instructor certificate with a sport pilot rating; and

(9) A proficiency check for an additional category or class privilege for a sport pilot certificate or a flight instructor certificate with a sport pilot rating.

. . . .

 

[Half Fast]

Giving instruction is not a privilege of your sport pilot certificate, it's a privilege of your instructor certificate.

§ 61.413 What are the privileges of my flight instructor certificate with a sport pilot rating?
(a) If you hold a flight instructor certificate with a sport pilot rating, you are authorized, within the limits of your certificate and rating, to provide training and endorsements that are required for, and relate to -

(1) A student pilot seeking a sport pilot certificate;

(2) A sport pilot certificate;

(3) A flight instructor certificate with a sport pilot rating;

(4) A powered parachute or weight-shift-control aircraft rating;

(5) Sport pilot privileges;

(6) A flight review or operating privilege for a sport pilot;

(7) A practical test for a sport pilot certificate, a private pilot certificate with a powered parachute or weight-shift-control aircraft rating or a flight instructor certificate with a sport pilot rating;

(8) A knowledge test for a sport pilot certificate, a private pilot certificate with a powered parachute or weight-shift-control aircraft rating or a flight instructor certificate with a sport pilot rating; and

(9) A proficiency check for an additional category or class privilege for a sport pilot certificate or a flight instructor certificate with a sport pilot rating.

. . . .

You’re missing the point.

A Sport CFI, having only a SP instructor certificate, does not need a Commercial ticket like a regular CFI. He cannot carry persons for hire without a Commercial ticket, however. Effectively, the court just made it illegal for Sport CFIs to give instruction by saying that giving instruction is carrying persons for hire.

 

[Lindberg]

You’re missing the point.

A Sport CFI, having only a SP instructor certificate, does not need a Commercial ticket like a regular CFI. He cannot carry persons for hire without a Commercial ticket, however. Effectively, the court just made it illegal for Sport CFIs to give instruction by saying that giving instruction is carrying persons for hire.

What's not to understand? The CFI certificate expressly grants the privilege of providing instruction. If instruction includes carrying persons for hire, that is subsumed in the privilege to give instruction. The fact that he also has a different certificate that doesn't grant that privilege is irrelevant.

The aircraft at issue in this case only have a single airworthiness certificate, which prohibits carriage of people for hire.

 

[Salty]

What's not to understand? The CFI certificate expressly grants the privilege of providing instruction. If instruction includes carrying persons for hire, that is subsumed in the privilege to give instruction. The fact that he also has a different certificate that doesn't grant that privilege is irrelevant.

The aircraft at issue in this case only have a single airworthiness certificate, which prohibits carriage of people for hire.

I believe Lsas are also prohibited from carriage of people for hire.

 

[Arnold]

I think this thread is a tempest in a teapot for several reasons.

1) It was a challenge to a specific revocation action not a general challenge to the regulations.
2) The operator was testing the FAA, essentially daring them to take action. The court cites three reasons the company's actions constitute an emergency.
3) Precedential value is minimal if any. This was a narrow issue. "Should Warbirds (and just warbirds) be prohibited from carrying paying passengers on "instructional flights?"

Procedural posture matters in these cases.

If Warbirds had followed the FAA instructions and then sued on the grounds that the FAA was violating the Administrative Procedures Act by imposing an arbitrary and capricious standard they would have had a better chance at prevailing.

But no. They decided to say F you to the FAA and they were slapped hard. Now instead of challenging an FAA regulatory interpretation they are defending against an FAA revocation. All the talk in the decision about paying for flight instruction, to my mind, was to get it out of the way. So the court could get to their real issue which was defiance of government authority.

We must remember that an adjudicator (judge or labor arbitrator) will always rule in favor of what the authority (FAA or employer) can reasonably show is a safety matter. No adjudicator wants to explain why they ignored an authority's wishes and then someone dies.

So in my professional opinion, this does not change anything.

What I do think it does is move us slightly away from the American regulatory model and towards the European regulatory model. But only slightly. The American model can be summed up as "if it's not prohibited it's permitted." The European model can be summed up as "if it's not permitted it's prohibited." See. competing U.S. and French probably cause determination in the Roselawn ATR crash.

 

[Half Fast]

What's not to understand? The CFI certificate expressly grants the privilege of providing instruction. If instruction includes carrying persons for hire, that is subsumed in the privilege to give instruction.

I'm not sure that is correct. Why do you conclude that? There are more stringent requirements involved in carrying persons for hire, such as the need for a 1st or 2nd class medical, not to mention the business requirements imposed.

If carrying persons for hire is automatically granted in the privilege of giving instruction, then we could carry that to the absurd and a CFI could load twenty paying customers onto a plane and take them up for a "group cross-country lesson" and ferry them a few hundred miles.

 

[Lindberg]

I'm not sure that is correct. Why do you conclude that? There are more stringent requirements involved in carrying persons for hire, such as the need for a 1st or 2nd class medical, not to mention the business requirements imposed.

If carrying persons for hire is automatically granted in the privilege of giving instruction, then we could carry that to the absurd and a CFI could load twenty paying customers onto a plane and take them up for a "group cross-country lesson" and ferry them a few hundred miles.

One of the maxims of statutory interpretation is lex specialis derogat legi generali; a specific law governs over a general law. And as I wrote above, Sport Pilot CFI is expressly granted the privilege of providing instruction. That is a privilege of his instructor certificate. The fact that he also holds a different certificate doesn't take away from that.

His instructor certificate doesn't grant any privileges regarding carry more people than an aircraft is certified for nor engaging in careless or reckless operation, so there's no reason to conclude he could carry 20 people in an LSA.

 

[Lindberg]

I think this thread is a tempest in a teapot for several reasons.

1) It was a challenge to a specific revocation action not a general challenge to the regulations.
2) The operator was testing the FAA, essentially daring them to take action. The court cites three reasons the company's actions constitute an emergency.
3) Precedential value is minimal if any. This was a narrow issue. "Should Warbirds (and just warbirds) be prohibited from carrying paying passengers on "instructional flights?"

Procedural posture matters in these cases.

If Warbirds had followed the FAA instructions and then sued on the grounds that the FAA was violating the Administrative Procedures Act by imposing an arbitrary and capricious standard they would have had a better chance at prevailing.

But no. They decided to say F you to the FAA and they were slapped hard. Now instead of challenging an FAA regulatory interpretation they are defending against an FAA revocation. All the talk in the decision about paying for flight instruction, to my mind, was to get it out of the way. So the court could get to their real issue which was defiance of government authority.

We must remember that an adjudicator (judge or labor arbitrator) will always rule in favor of what the authority (FAA or employer) can reasonably show is a safety matter. No adjudicator wants to explain why they ignored an authority's wishes and then someone dies.

So in my professional opinion, this does not change anything.

What I do think it does is move us slightly away from the American regulatory model and towards the European regulatory model. But only slightly. The American model can be summed up as "if it's not prohibited it's permitted." The European model can be summed up as "if it's not permitted it's prohibited." See. competing U.S. and French probably cause determination in the Roselawn ATR crash.

In addition to the important point regarding procedural posture, I would also note that the emergency order was against the company and its operation, not against the flight instructor. Furthermore, the amici don't make any serious attempt to defend Warbird's operation, rather they are concerned that the order not effect owners' ability to receive instruction in they own limited category aircraft. And finally, assuming that the amici cite the best evidence of prior FAA interpretations on this issue, they're not so unequivocal as the discussion here implies.

 

[flyingron]

We must remember that an adjudicator (judge or labor arbitrator) will always rule in favor of what the authority (FAA or employer) can reasonably show is a safety matter. No adjudicator wants to explain why they ignored an authority's wishes and then someone dies.

Not true. The judge can not choose to decide what a "safety matter" is and override the law. What the ALJ, NTSB, and the district courts are bound to do is accept the FAA interpretation of their own regulation unless there is something specific in the statutory law (or ultimately the Constitution) that disagrees.

I disagree that this doesn't set precedent. The decision pretty much says "the regs say flight instruction is carrying passengers for hire and if the FAA doesn't think that a rule that bars carriage for hire shouldn't apply to flight instruction in a given situation, they would say so in the reg." That's pretty clear and unrelated to why this particular rule was being applied to the appellant.

 

[Palmpilot]

In addition to the important point regarding procedural posture, I would also note that the emergency order was against the company and its operation, not against the flight instructor. Furthermore, the amici don't make any serious attempt to defend Warbird's operation, rather they are concerned that the order not effect owners' ability to receive instruction in they own limited category aircraft. And finally, assuming that the amici cite the best evidence of prior FAA interpretations on this issue, they're not so unequivocal as the discussion here implies.

Am I correct in thinking that "amici" refers to the authors of amicus briefs that were filed in the case?