Petition for Writ of Certiorari — Warbird Adventures, Inc., Petitioner v. Federal Aviation Administration

No.

IN THE

Supreme Court of the United States

WARBIRD ADVENTURES, INC., PETITIONER

v.

FEDERAL AVIATION ADMINISTRATION

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT D. SCHULTE

Counsel of Record

Schulte Booth P.C.

14 North Hanson Street

Easton, MD 21601

rschulte@schultebooth.com

(410) 822-1200

CURRY & TAYLOR ¢ (202) 350-9073

1

QUESTION(S) PRESENTED

1. Is the FAA’s reading of 14 CFR § 91.315 to

prohibit paid flight instruction in Limited Category

Aircraft—sometimes referred to as “warbirds’—

reasonable when it contravenes the agency’s own history

since 1946 of encouraging the public’s use and operation of

these aircraft and when it has always considered flight

training distinct from the carriage of persons or property

for compensation or hire?

2. If paid flight instruction in petitioner’s WW II-

era Limited Category aircraft has always been prohibited

because the flight student is being “carried for

compensation or hire” under 14 C.F.R. § 91.315, as the

FAA now argues, how did anyone learn to fly these

vintage aircraft for the last seventy (70) years?

Ww

PARTIES TO THE PROCEEDING

All the parties in this proceeding are listed in the

caption.

CORPORATE DISCLOSURE STATEMENT.

Petitioner Warbird Adventures, Inc. (“Warbird”), is a

private business entity incorporated under the laws of Florida .

It has no parent company and no publicly held company owns

10% or more of its stock.

STATEMENT OF RELATED CASES

None

TABLE OF CONTENTS

Page

(QUESTION(S) PRESENTED ...........sssssscssssssecessssecessssceccesssceeeess l

PARTIES TO THE PROCEEDING. .......ccccsssccssscccssscccsscccsscccscecees

CORPORATE DISCLOSURE STATEMENT. ........ccccssseccccsssseeceees i

STATEMENT OF RELATED CAGES .......cccccccssssccccsssscecccsssscccees i

TABLE OF AUTHORITIEG.......ccccsssscccssssscccccssssccccsssssccccsssseceees 1V

OPINIONS BELOW ........cccccccsssssccccssssccccccssscccccsssseccccsssccccccsscecees 1

oJ URISDICTION......ccscccssscccsscccssscccssccccsscccsscccssccccsscccsscccscccccscceees 2

RELEVANT PROVISIONS INVOLVED ..u....ccccssscccsssccssscccsssccssees 3

STATEMENT. ......cccsssssccccssssccccccsssscccsssscccccsssccccccsssccccssscccccecessess 12

REASONS FOR GRANTING THE PETITION ........cssscccecsssseeeees 20

CONCLUSION ...ccccccsssssscccccssssssccccccssssssccccccssssscccsccccssscscesccaceeess 32

APPENDIX

Circuit Court Decision dated July 6, 2028.............000 la

Circuit Court Decision in Warbird Adventures,

Inc. v. FAA, 848 Fed. App’x 381 (2021)... eee Ta

The FAA’s Decision and Order, dated October

6, 2022........ccccccccssccsssccsssccssssssscccsscccessssssccccesecesssssssseees lla

The ALJ’s Initial Decision, dated February 8,

QOQ2.....cccccosccoscccscccsccsscccsccscccssccssccssccsccnsccnssocssccsccnsccssceecs sla

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The court of appeals’ denial of petition for

rehearing or rehearing C1 DANC..........:cccccssceeessseeeees

Vv

TABLE OF AUTHORITIES

Page

CASES

AUER V. ROBBINS, 519 U.S. 452, 462-463 (19977) ....... 22, 30

CHRISTENSEN V. HARRIS COUNTY, 529 U.S. 576,

58S (ZOO) ........scccccsssccsccsssccecessssescesssscecesssscecessssceseesesseeeess 24

CHRISTOPHER V. SMITHKLINE BEECHAM CORP.,

567 U.S. 142, 155 (2012)... ccsccsecesssscreecessssseeeees 22, 30

FED. COMMC'CNS COMM'N V. F'0X TELEVISION

STATIONS, INC., 556 U.S. 502, 515-516 (2009)........ 30, 31

J UDGMENT. WARBIRD ADVENTURES, INC. V.

FEDERAL AVIATION ADMINISTRATION, 83

FED. APP'X 331 (D.C. CIR. 2021)... eceeeeeeeee 15, 16, 17

KISOR V. WILKIE, 588 U.S.__,____—((2019)........ 22, 24, 25, 30

MATTER OF: WARBIRD ADVENTURES, INC., DKT.

No. FAA 2020-0534 & CASE No. 2020S0150011.......... 2

NATIONAL MIN. ASSN. V. MCCARTHY, 758 F.3D

243, 252 (D.C. CIR. 2014)... ccssscctsccssssscrecssssssreeeesees 24

NISHIO V. SAIPAN INTERNATIONAL AIRPORT,

2016 WL 9685577 AT **17 & 22 (FAA 4/29/

AU) 6) 26

PEREZ V. MORTGAGE BANKERS ASS'N, 575 U.S.

92, 109 (2015) uu... eeeccssssteeesssscecesssscecceseseeeeess 23-25,30-31

SHALALA V. GUERNSEY MEMORIAL HOSspP., 514

U.S. 87, 100 (1995)... secccsssscsccsssscccessssecesssseecesssseeeeees 24

STATUTES

5 U.S.C. § 5B8(D) .....csssccscesssscccssssceccesssseceesssseees 3, 4, 23, 31

FD U.S.C. § T06...... ccc ccccccssssceccsssscecesssceecessssceecssesceeeess 5, 238, 31

28 U.S.C. § 12541) oui ccecccsssssctscessssscreccessssscessessssseeeees 3

28 U.S.C. § 2101(C) ou... ecccsssccecesssseecesssseccesssseeessessceeesees 3

49 U.S.C. § 46110(a) cesseccssescsseccssecsssecsssssssecssssesseses: 7, 14, 18

VI

RULES

Supreme Court Rule 10(C) ..........csssceccesessecesssseeeeseees 23

Revised Supreme Court Rule 18.8 ..........cccsssscesssseeeeseees 3

REGULATIONS

11 Fed. Reg. 14098 .............ccccsssssecssssscessssecesssscsssceeesssceeess 28

14 C.F LR. §$ 91.315 wc eccccccccccccccceeeeeees i, 1, 2, 7-8,11-31

14. CER §$ Lilie ccccccccccccccccecccsssssssssssssseeees 6, 26, 27

14 CER §$ 119(€) wu cect ccccccccccececssssssssscsscssssssccecceeeess 9

14 CER $119.11) ee ccccceeccssssssssssssscsscccceeeeeees 27

14 CER § 13.238 ee ecscssssssccccccccccccessssssssscccscssscccceeeseees 16

14 CER § 18.235 (2) uu... eecccssssssssssccccccescccsssssssssssssceeeees 7,14

14 CER §$ 91.13 wee cccccccccccccccccccccsscsscsssssssssccsssceseeeees 7

14 CER § 91.130) we ccccccccccccccccceeecsssssssssssssseeees 14,16

14 CER § 91.313(€) wc cccccccccccccccccccccssssssesssssssssssccceeseees 8

14 CER § 91.325 we eccccssscccccccccccccessssssssssccssssscceceeeeesees 27

14 CER § 91.409... ccc tccccccccccesssssssscssccsssscccceeeseees 27

14 CER S$119(D)(E)1) ee cccceccescsssssssscssscscscceceeeeees 27

62 Fed. Reg. 16242 (April 4, 1997) ...........csssssessssreessnees 26

86 Fed. Reg. 36494-95 (July 12, 2021).....cccssssscssssscsseeeee 15

1

OPINIONS BELOW

The unpublished per curiam Opinion of the

United States Court of Appeals for the Eleventh

Circuit in Warbird Adventures, Inc. v. Federal Aviation

Administration, C.A. Docket No. 22-18765, decided and

filed July 6, 2023, and reported at 2023 WL 4363998

(11° Cir. 7/06/2023), denying petitioner’s petition for

review of the final Decision and Order of the FAA

finding that it violated 14 C.F.R. § 91.315 and assessing

a civil penalty of $5,500 , is set forth in the Appendix

hereto (App. 1-6).

The unpublished per curiam Judgment of the

United States Court of Appeals for the District of

Columbia Circuit in Warbird Adventures, Inc. v.

Federal Aviation Administration, C.A. Docket No. 20-

1291, decided and filed April 2, 2021, and reported at

843 Fed. Appx 3381 (D.C. Cir. 2021), denying

petitioner’s petition for review of respondent FAA’s

emergency cease and desist Order that petitioner stop

providing paid flight instruction in one of its vintage

World War II military aircraft, is set forth in the

Appendix hereto (App. 7-10).

The unpublished final Decision and Order of the

Acting Administrator of the FAA (Billy Nolen) in In the

Matter of: Warbird Adventures, Inc., Dkt. No. FAA

2020-0534 & FAA Order No. 2022-04, dated and served

October 6, 2022, denying petitioner’s appeal from the

Initial Decision of the Administrative Law Judge but

modifying the assessed civil penalty for violation of 14

C.F.R. § 91.815 from $2,500 to $5,500, is set forth in the

Appendix hereto (App. 11-30).

2

The unpublished Initial Decision of the

Administrative Law Judge Douglas M. Rawald in

In the Matter of: Warbird Adventures, Inc., Dkt. No.

FAA 2020-0534 & Case No. 202080150011, dated and

served February 8, 2022, assessing a civil penalty of

$2,500 for petitioner’s found violation of 14 C.F.R. §

91.315, is set forth in the Appendix hereto (App. 31-43).

The unpublished Order of the Administrative

Law Judge Douglas M. Rawald in In the Matter of:

Warbird Adventures, Inc., Dkt. No. FAA 2020-0534 &

Case No. 202080150011, dated and served October 6,

2021, granting respondent FAA’s motion for partial

summary judgment establishing that petitioner

violated 14 C.F.R. § 91.315, and denying petitioner’s

Motion for Decision, is set forth in the Appendix hereto

(App. 44-54).

The unpublished Order of the United States

Court of Appeals for the Eleventh Circuit in Warbird

Adventures, Inc. v. Federal Aviation Administration,

C.A. Docket No. 22-18765, decided and filed September

11, 2028, denying petitioner’s timely filed petition for

Panel rehearing or for rehearing en banc, is set forth in

the Appendix hereto (App. 55-56).

JURISDICTION

The decision of the United States Court of

Appeals for the Eleventh Circuit affirming respondent

FAA’s final agency decision, was entered on July 6,

2023; and its Order denying petitioner’s timely filed

petition for Panel rehearing or for rehearing en banc

was decided and filed on September 11, 2023 (App. 1-

6;55-56).

5)

This petition for writ of certiorari is filed within

ninety (90) days of the date the Court of Appeals denied

petitioner’s timely filed petition for Panel rehearing or

for rehearing en banc. 28 U.S.C. § 2101(c). Revised

Supreme Court Rule 18.3.

The jurisdiction of this Court is invoked

pursuant to the provisions of 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall...be deprived of life, liberty, or

property, without due process of law....

5 U.S.C. § 551 (4) & (5) (Administrative

Procedure Act):

Definitions

For the purpose of this subchapter-

(4) “rule” means the whole or a part of an agency

statement of general or particular applicability

and future effect designed to implement,

interpret, or prescribe law or _ policy or

describing the organization, procedure, or

practice requirements of an agency and includes

the approval or prescription for the future of

rates, wages, corporate or financial structures or

reorganizations thereof, prices, facilities,

appliances, services or allowances therefor or of

valuations, costs, or accounting, or practices

bearing on any of the foregoing;

4

(5) “rule making” means agency process for

formulating, amending, or repealing a rule....

5 U.S.C. § 553(b) & (c):

Rule making

(b) General notice of proposed rule making shall

be published in the Federal Register, unless

persons subject thereto are named and either

personally served or otherwise have actual

notice thereof in accordance with law. The notice

shall include -

(1) a statement of the time, place, and nature of

public rule making proceedings;

(2) reference to the legal authority under which

the rule is proposed;

and

(3) either the terms or substance of the proposed

rule or a description of the subjects and issues

involved.

Except when notice or hearing is required by

statute, this subsection does not apply -

(A) to interpretative rules, general statements of

policy, or rules of agency organization,

procedure, or practice; or

(B) when the agency for good cause finds (and

incorporates the finding and a brief statement of

reasons therefore in the rules issued) that notice

and public procedure thereon are impracticable,

unnecessary, or contrary to the public interest.

(c) After notice required by this section, the

agency shall give interested persons an

D

opportunity to participate in the rule making

through submission of written data, views, or

arguments with or without opportunity for oral

presentation. After consideration of the relevant

matter presented, the agency shall incorporate

in the rules adopted a concise general statement

of their basis and purpose.

When rules are required by statute to be made

on the record after opportunity for an agency

hearing, sections 556 and 557 of this title apply

instead of this subsection.

5 U.S.C. § 706:

Scope of Review

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions oof law, interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the

terms of an agency action.

The reviewing court shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction, authority,

or limitations, or short of statutory right;

(D) without observance of procedure required by

law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an

agency hearing provided by statute; or

(F’) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the

court shall review the whole record or those

parts of it cited by a party, and due account shall

be taken of the rule of prejudicial error.

14 CFR § 1.1:

General definitions.

Air carrier means a person who undertakes

directly by lease, or other arrangement, to

engage in air transportation.

Crewmember means a _ person assigned to

perform duty in an aircraft during flight time.

Commercial operator means a person who, for

compensation or hire, engages in the carriage by

aircraft in air commerce of persons or property,

other than as an air carrier or foreign air carrier

or under the authority of Part 375 of this title.

Where it is doubtful that an operation is for

“compensation or hire’, the test applied is

whether the carriage by air is merely incidental

to the person's other business or is, in itself, a

major enterprise for profit.

7

Flightcrew member means a _ pilot, flight

engineer, or flight navigator assigned to duty in

an aircraft during flight time.

Person means an individual, firm, partnership,

corporation, company, association, joint-stock

association, or governmental entity. It includes a

trustee, receiver, assignee, or __— similar

representative of any of them.

14 CFR § 13.235(a) & (c):

Judicial review of a final decision and order.

(a) In eases under the Federal aviation statute, a

party may seek judicial review of a final decision

and order of the Administrator, as provided in 49

U.8.C. 46110(a), and, as applicable, in 49 U.S.C.

46301(d)(7)(D) ii), 46301(¢), or 47532.

(c) A party seeking judicial review of a final

order issued by the Administrator may file a

petition for review in the United States Court of

Appeals for the District of Columbia Circuit or in

the United States Court of Appeals for the

circuit in which the party resides or has its

principal place of business.

14 CFR § 91.13:

Careless or reckless operation.

(a) Aircraft operations for the purpose of air

navigation. No person may operate an aircraft in

a careless or reckless manner so as to endanger

8

the life or property of another.

14 CFR § 91.313(¢):

Restricted category civil aircraft: Operating

limitations.

(c) No person may operate a restricted category

civil aircraft carrying persons or property for

compensation or hire. For the purposes of this

paragraph (c), a special purpose operation

involving the carriage of persons or material

necessary to accomplish that operation, such as

crop dusting, seeding, spraying, and banner

towing (including the carrying of required

persons or material to the location of that

operation), an operation for the purpose of

providing flight crewmember training in a

special purpose operation, and an operation

conducted under the authority provided in

paragraph (h) of this section are not considered

to be the carriage of persons or property for

compensation or hire.

14 CFR. § 91.315:

Limited category civil aircraft: Operating

limitations.

No person may operate a limited category civil

aircraft carrying persons or property for

compensation or hire.

14 CFR § 119(e):

Applicability

(e) Except for operations when common carriage

is not involved conducted with airplanes having a

passenger-seat configuration of 20 seats or more,

excluding any required crewmember seat, or a

payload capacity of 6,000 pounds or more, this

part does not apply to—

(1) Student instruction;

14 CFR [CAR] § 45.1 (1949):

Commercial Operator Certification and

Operation Rules.

Adopted by the Civil Aeronautics Board at its

office in Washington, D. C., on the 23d day of

March 1949.

The problem of safety regulation of non-common

carrier carriage of goods and persons for

compensation or hire has tended to become acute

since the termination of the war and the release

by the armed forces of surplus aircraft

purchasable with limited funds. Moreover, with

the promulgation today of more rigid safety

requirements for air carriers engaging in

irregular carriage of goods and persons, the

pressure to avoid regulation by engaging or

purporting to engage only in contract operations

is expected to increase.

10

Applicability of part.

The provisions of this part shall be applicable to

citizens of the United States engaging in the

carriage in air commerce of goods or passengers

for compensation or hire, unless such carriage is

conducted under the provisions of an air carrier

operating certificate issued by the

Administrator. For the purpose of this part,

student instruction, banner towing, crop dusting,

seeding, and similar operations shall not be

considered as the carriage of goods or persons

for compensation or hire.

Introduction

Starting a small business providing flight

instruction in World War II vintage airplanes is

financially challenging enough. But when the

administrative agency which regulates your business

changes the rules of the game in midstream, a policy

change which is_ unexpected, contrary to _ its

longstanding view of flight training and made without

any procedural safeguards which should attend

legitimate rule making, it is a wrongful assumption of

power at odds with what Congress intended when it

created the FAA to oversee domestic air operations.

From 1946 onward, the Civil Aeronautics Board

(“CAB”) and its successor agency the FAA have

followed Congress’ lead to encourage the civilian

community to absorb airworthy WW [I-era aircraft by

promoting their use and enjoyment for air shows,

exhibitions, personal use and other such undertakings.

However, these aircraft were built under the exigencies

11

of war and did not undergo the normal certification

process attendant to civilian aircraft. In order to

convert these war orphans to civil use, the CAB

created a “new category” of aircraft, the Limited

Category Aircraft.

At the same time, in order to protect post-War

civilian airlines from competition by these aircraft, the

CAB issued a rule—now expressed inl4 CFR §

91.315— that they could not be used to carry persons or

property for compensation or hire, a reasonable

restriction which allowed public use of these aircraft

while keeping their operation cabined to mostly noncommercial undertakings.

But at some point, flight instruction in these

magnificent machines became necessary; and since

neither flight instructors nor the aircraft fly for free, a

market emerged for paid flight training on these

aircraft.

At no time, however, from the post-War period

onward did the CAB or the FAA ever regulate their

operation by providing—or even insinuating—that paid

flight instruction, 1.e., the act of learning to fly these

vintage warplanes, was prohibited. Indeed, common

sense, air safety concerns and the continuing vitality of

flying vintage war planes support the notion that these

aircraft need persons to fly them safely or they will

become extinct. Yet the FAA, relying upon a nebulous

2014 guidance letter, now says 14 CFR § 91.315

prohibits petitioner’s flight instruction operation. It has

shut down petitioner’s business, fining it and even

putting its owner’s pilot’s license at risk.

12

The FAA’s unreasonable, arbitrary reading of 14

CFR § 91.315 rewrites, if not flatly ignores, its own

history dating back to 1946 of encouraging the public’s

ownership and operation of WW-II vintage aircraft.

Moreover, its conflation of paid flight training in these

aircraft with the “carriage of persons or property for

compensation or hire” in order to penalize, if not

effectively end, petitioner’s business is administrative

rule making run amok.

This is an ideal case to grant certiorari because

petitioner’s plight is precisely the one faced by

thousands of other regulated small and family-owned

businesses when an_ unresponsive Executive

bureaucracy metes out untethered changes to its rules

by fiat. It has the potential, as realized here, to destroy

these businesses in their tracks. Upending the

reasonable expectation of those like petitioner that the

agency would continue to read and enforce its

longstanding rules as written, the FAA’s new

interpretation defies its prior treatment of petitioner’s

business, is bereft of facts justifying its new policy, and

is unreasonable on its face. Meaningful, robust judicial

review will vindicate the separation of powers principle

at stake here by giving these businesses a remedy to

obtain a fair hearing before these new rules can be

enforced against them. The Court can and should order

such relief in this case.

STATEMENT

Petitioner Warbird Adventures, Ine.

(“petitioner”) was formed in 1998 in Florida by Thom

Richard (“Richard”), an emigre from Sweden, to

provide flight training in vintage World War II aircraft,

13

primarily “warbirds” like the famed Curtiss P-40N

Warhawk, an aircraft that played a large role in

defeating the Axis powers and ushering the United

States into an aviation golden age. Richard is a certified

flight instructor holding numerous FAA-issued pilot

certificates, among them Airline Transport Pilot with

Single and Multi-Engine Commercial ratings, as well as

Helicopter and Glider ratings. Flight instruction has

been Richard’s career and passion for more than thirty

(30) years.

Sometime in 2015, Richard investigated the

possibility of purchasing a P-40N Warhawk for his

flight training business. The P-40N is a vintage WWII

war plane, a so-called Limited Category aircraft which

requires a like-named airworthiness certificate from

respondent Federal Aviation Administration

(“respondent” or “ the FAA”) in order to fly. This

certification requirement has existed for these vintage

aircraft since 1946 and was prompted by the

government’s desire to convert surplus military aircraft

to civilian use after World War II. Pilots have been

learning to fly these aircraft and have been paying to do

so for more than seventy (70) years.

While researching whether he could lawfully

provide flight training “for hire” in a Limited Category

aircraft like the P-40N, Richard encountered 14 CFR §

91.315, an FAA regulation. It reads:

No person may operate a limited category civil

aircraft carrying persons or property for

compensation or hire.

On that score, Richard communicated with FAA

14

Aviation Safety Inspector Larry Enlow. Enlow wrote

Richard on January 7, 2016, (“the Enlow Letter’)

stating that compensation for giving flight instruction is

not compensation for the carriage of persons or

property, but rather compensation for the flight

instruction itself; and as long as the flight instruction is

not contrary to the regulations associated with the

aircraft's airworthiness certification, the flight

instructor can be compensated for the flight instruction.

With regard to Limited Category aircraft like

the P-40N, Safety Inspector Enlow wrote Richard that

he could conduct flight instruction in this aircraft

because the limitation expressed in 14 CFR § 91.315

“does not apply to flight training since payment for

flight instruction is not considered to be compensation

for [the] carriage of persons or property.”

Based upon that advice, Richard purchased a P-

AON for petitioner’s flight training business and began

offering paid flight instruction in this certificated

aircraft to its customers. On July 28, 2020, however, the

FAA issued an emergency cease-and desist order that

petitioner stop providing paid flight training in its P-

AON claiming it violates 14 CFR § 91.815 as well as 14

CFR § 91.13(a) (careless or reckless operation), a

“residual charge,” one dependent on a found violation of

14 CFR § 91.315.

Petitioner immediately brought a petition for

review of this emergency order before the Court of

Appeals for the District of Columbia Circuit pursuant

to 49 U.S.C. § 46110(a) and 14 CFR § 13.235(a) & (c). On

April 2, 2021,the court of appeals denied the petition in

an unpublished per curiam Judgment. Warbird

15

Adventures, Inc. v. Federal Aviation Administration,

88 Fed. App’x 381 (D.C. Cir. 2021) (App. 7-10). The

Panel determined that 14 CFR § 91.315’s plain language

prohibits petitioner from flight training in a Limited

Category aircraft like the P-40N because a flight

student is a “person” within the regulation and when

he is learning to fly the student is “carr[ied]” consistent

with its terms (App. 9). Absent an exemption—which

petitioner had not requested—the Panel concluded that

petitioner’s aircraft was not certified for paid flight

instruction (/d.).

Without conceding that an exemption was

necessary under § 91.315 to operate its flight training

business, petitioner immediately applied for an

exemption on April 2, 2021, the same day the court of

appeals denied its petition for review(App. 27). Three

months later, on July 12, 2021, following public concern

over its pronouncement that paid flight training is the

same as carriage by air for compensation or hire within

§ 91.815, the FAA publicly stated that it would consider

an “expedited exemption process” to ensure that

businesses like petitioner’s could resume flight training

with Limited Category aircraft. See 86 Fed. Reg.

36494-95 (July 12, 2021). Yet, over two years later, the

FAA still refuses to issue petitioner an exemption or

provide an explanation for failing to do so. Petitioner

has in the interim suffered substantial business losses,

its flight training operation remains grounded and

Richard’s pilot license is at risk.

While petitioner was pursuing his petition for

review in the court of appeals, the FAA, on August 20,

2020, brought an administrative enforcement action

against it in the Office of Hearings for the Department

16

of Transportation seeking a civil penalty of $6,750

stemming from its alleged violation of 14 CFR § 91.315

and 14 CFR § 91.18(a) when it provided a paid flight

training session in the P-40N on January 31, 2020. On

October 6, 2021, Administrative Law Judge Douglas M.

Rawald granted the FAA’s motion for partial summary

judgment and denied petitioner’s motion for decision in

its favor (App. 44-54).

Relying in part on the D.C. Circuit’s earlier

decision in Warbird Adventures, Inc. v. Federal

Aviation Administration, supra, Rawald reasoned that

a flightcrew member who pays to receive flight training

from another flightcrew member in petitioner’s P-40N

is a “person” as defined by 14 CFR § 91.815; that

payment for flight training satisfies the “for

compensation or hire” component of the regulation; and

that there is no regulatory exception for flight

instruction (App. 47-52). Finding a violation of 14 CFR

§ 91.315, the ALJ ordered a further hearing to

determine the civil penalty (App. 53-54). On February

8, 2022, the ALJ, after a penalty hearing, issued his

Initial Decision finding no aggravating factors and

fining petitioner a civil penalty of $2,500 (App. 31-48).

Both parties appealed the Initial Decision to the

FAA’s Acting Administrator, Billy Nolen (“Nolen”),

pursuant to 14 CFR § 18.238. On October 6, 2022, Nolen

in a final agency Decision and Order, denied petitioner’s

appeal but granted the FAA’s appeal to the extent of

increasing the assessed civil penalty against petitioner

from $2,500 to $5,500 (App. 11-30).In doing so, he

rejected petitioner’s arguments that the “carrying [of]

persons” as used in 14 CFR § 91.315 does not

encompass flight instruction; that the FAA improperly

17

changed its longstanding interpretation of the

regulation; and that no penalty should be assessed

(App. 14-19).

First, Nolen adopted the ALJ’s analysis that the

regulation’s use of the term “person” includes a student

learning to fly this Limited Category aircraft (App. 14).

He also determined, like the D.C. Circuit’s earlier

decision in Warbird Adventures, Inc. v. Federal

Aviation Administration, supra, that the term

“carrying” is a broad term which—absent any

exception, and there are none in the regulation—

includes flight instruction (App. 15-16).

Second, as Nolen saw it, the FAA had not

changed its position over time about whether flight

instruction was prohibited by 14 CFR § 91.315 (App.

16-17). He pointed to the socalled “Morris

Interpretation” published by the FAA in 2014 which

states that Ҥ 91.315 does not set forth any exception

for providing flight training for hire in a limited

category aircraft” (App. 16 citing Legal Interpretation

to Mr. Gregory Morris, 2014 WL 5319629 (Oct. 7, 2014)).

Because “nothing has changed between the Morris

Interpretation and the present day,” Nolen ruled that

the FAA had not changed its position and denied

petitioner’s appeal on this issue (App. 16-17).

Third, Nolen concluded that the violation was

sanctionable because petitioner was expected to know

the requirements of the FAA’s regulations regardless of

the “mistaken guidance [i.e., the Enlow Letter]

provided [it] by an FAA office that did not have

authority to change the regulatory requirements” (App.

17-18). “Inaccurate advice” like the Enlow Letter may

18

be a mitigating factor, but Nolen concluded that it could

not excuse the violation or a resulting penalty (App.

18).

As for the penalty, Nolen found that Richard,

petitioner’s sole owner, knew on January 31, 2020, when

it operated the P-40N for paid flight instruction that it

was contrary to § 91.815 (App. 21-25). Nolen relied on

the fact that the 2016 Enlow Letter sent to Richard did

not mention the 2014 Morris Interpretation and was

therefore incomplete and mistaken; that in April of

2019, Aviation Safety Inspector Joseph Gramzinski

advised Richard that petitioner’s flight training

operation “may” violate § 91.315; and that Richard

disagreed with this view and decided to continue to

offer same to the public (App. 22-24).

But, Nolen determined, measured against

petitioner’s “knowing violation” was the FAA’s issuance

of the “mistaken” Enlow Letter to Richard together

with its failure to definitively correct its “erroneous”

advice after ASI Gramzinski spoke with Richard in

April of 2019 (App. 27-28). Nolen therefore modified the

ALJ’s penalty by increasing it to reflect petitioner’s

“knowing violation” but did not maximize that increase

due to the FAA’s own misleading conduct (App. 28-29).

Petitioner was assessed a civil penalty of $5,500 (App.

29).

Petitioner petitioned the court of appeals for

review of this final agency Decision and Order pursuant

to 49 U.S.C. § 46110(a). On July 6, 2023, the Panel

denied the petition in a per curiam opinion (App. 1-6).

It considered 14 CFR § 91.815 an unambiguous

regulation and concluded, like the ALJ and the FAA

19

Administrator, that its use of word “carry” has a broad

meaning and includes flight instruction (App. 4). That

is, when a person receives flight instruction, that

person is present in the aircraft and, as the Panel

determined, “is being ‘convey[ed] or transport[ed] by

the pilot who is giving the instructions” (App. 4-5).

Thus, it concluded that a pilot giving paid flight

instruction is carrying the student for the purposes of

the regulation (App. 5).

Furthermore, the Panel noted that other

regulations that address the operation of aircraft for

compensation or hire have included exemptions for

flight instruction; and had the FAA wanted to exempt

flight instruction from the reach of 14 CFR § 91.315, it

could have done so explicitly but did not do so (App. 5).

Finally, it ruled that because the regulation is

unambiguous, there is no occasion to exercise any

deference toward the FAA’s interpretation of this

regulation ([d.).

On September 11, 2023, the Panel and the court

of appeals, respectively, denied petitioner’s timely filed

petition for Panel rehearing or for rehearing en banc

(App. 55-56).

20)

REASONS FOR GRANTING THE PETITION

The FAA’s Unreasonable Reading Of 14 CFR §

91.315 To Effectively End Petitioner’s Flight

Training Business Is Arbitrary, Capricious, An

Abuse of Discretion or Not In Accordance With

Law. It Rewrites By Fiat Its Own History

Encouraging The Public’s Operation Of Vintage

WW II Aircraft Since 1946. To Conflate Flight

Training In These Aircraft With The Carriage Of

Persons Or Property For Compensation Or Hire Is

Administrative Rule Making Run Amok.

Since1946, the FAA and its predecessor agency

the Civil Aeronautics Board (“the CAB”) have

permitted paid flight instruction in vintage WW-II

aircraft like petitioner’s P-40N Warhawk because it

furthered Congress’ intent to encourage the civilian

community to absorb airworthy WW-II vintage aircraft

by promoting their use and enjoyment for noncommercial purposes. While these aircraft were

regulated so that they could not compete in the post-

War environment with an emergent civilian airline

industry, 1.e., they could not transport or carry persons

or property from one place to another for compensation

or hire, there was no prohibition against persons

learning to fly these aircraft or operating them for

purposes having nothing to do with the commercial

transport of persons or property. In fact, learning to fly

these war planes guaranteed their continued use and

operation for successive generations of civilian aviators.

With the flight training business in WW-II

vintage aircraft in this posture, petitioner’s owner in

2015 investigated whether he could lawfully provide

21

flight training “for hire” in a Limited Category aircraft

like the P-40N. As for 14 CFR § 91.315, which prohibits

any person from “carrying persons or property for

compensation or hire” in such an aircraft, FAA Aviation

Safety Inspector Larry Enlow wrote petitioner’s owner

in January of 2016 that he could conduct flight

instruction in this aircraft because the limitation

expressed in this regulation “does not apply to flight

training since payment for flight instruction is not

considered to be compensation for [the] carriage of

persons or property.”

Yet the FAA in 2018, relying on a nebulous

guidance letter authored in 2014, announced that flight

training in Limited Category aircraft like the P-40N

violates 14 CFR § 91.315. Its agent, Aviation Safety

Inspector Joseph Gramzinski, later told petitioner’s

owner in April of 2019 that its flight training business

“may’—not “did”—violate § 91.315; and when

petitioner continued to operate its business, the FAA in

2020 began this enforcement action relying on its new,

confected reading of § 91.315 that paid flight training in

these aircraft is tantamount to the “carriage of persons

or property for compensation or hire.”

Petitioner submits this administrative

enforcement proceeding by the FAA is founded upon an

unreasonable reading of 14 CFR § 91.315, one which

renounces the FAA’s history of encouraging the public’s

use and operation of vintage war planes since 1946 by

promoting flight instruction in these aircraft. It

rewrites this unambiguous regulation to apply to paid

flight instruction without any textual support in the

regulation to do so. It creates de facto a new regulation

which, in turn, produces unfair surprise, upsetting the

22

legitimate reliance interests of petitioner and the flight

instruction industry generally.

The FAA’s new version is also unsupported by

any findings or new facts regarding safety, for example,

which might justify a more expansive reading. There is

lacking any “hallmarks of thorough consideration” by

the FAA in its proffered reading; it is unattended by

any substantiation and there is no indication that its

version comports with Congress’ intent to encourage

the use and operation of airworthy WW-II vintage

aircraft. Finally, the FAA’s new, if not invented, reading

is plainly inconsistent with the underlying regulation as

written.

On the other hand, if § 91.315 is genuinely

ambiguous, no deference to the FAA’s reading of this

regulation under Auer v. Robbins, 519 U.S. 452, 462-463

(1997), is warranted because the FAA’s new

interpretation does not’ reflect the agency’s

authoritative, expert-based, “fair[, or] considered

judgment,” Christopher v. SmithKline Beecham Corp.,

567 U.S. 142, 155 (2012), quoting Awer, 519 U.S. at 462;

because its reading unreasonably reduces itself to “a

merely convenient litigating position” or “post hoc

rationalization advanced” to “defend past agency action

against attack,” Kisor v. Wilkie, 588 U.S._,_; 139

S.Ct. 2400, 2417 (2019), quoting Christopher, supra; and

because it creates unfair surprise, upending justifiable

reliance by petitioner. Id. at 2418.

This “interpretive rule” by the FAA not only

advises the public, including petitioner, about the reach

of prohibited conduct under § 91.315, but it also binds

petitioner and the public by making law and providing

23

the basis for this enforcement proceeding. It therefore

remains the responsibility of the judiciary under 5

U.S.C. § 706 to decide “whether the law means what

the agency says it means.” Perez v. Mortgage Bankers

Ass’n, 575 U.S. 92, 109 (2015) (Scalia, J., concurring).

Petitioner is accordingly entitled to a robust, de

novo review by the judiciary under 5 U.S.C. § 706,

absent any Awer deference, addressing whether the

FAA’s unreasonable reading of § 91.315 to close down

its business is arbitrary, capricious, an abuse of

discretion or not in accordance with law. In addition,

the FAA should be ordered to pursue the notice-andcomment provisions of 5 U.S.C. § 553(b) & (c) so that

petitioner and the general public have input before this

de facto new regulation becomes law.

This petition raises the exceptionally important

question of whether and under what circumstances

persons regulated by an Executive agency may

challenge that agency’ changing the rules_ of

regulation in midstream without any input from those

persons affected, in contravention of its previous

enforcement position, and without providing any

substantial reason for doing so other than “because we

said so.” This after-the-fact rationalization by the FAA

for its new rule is regulation by fiat, not lawful

administrative rule making. It should not suffice on this

record. It is an important question of federal law that

has not been, but should be, settled by this Court. See

Supreme Court Rule 10(c).

The Court should grant certiorari, identify the

Panel’s error in construing this regulation, and remand

the matter to the court of appeals to decide under a

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