EAA Joins Aviation Groups in Addressing Court Regarding Warbird Case

November 25, 2020 – EAA has joined with AOPA, NAFI, ICAS, the North American Trainers Association, and GAMA in filing an amicus curiae ("friend of the court") brief in the case of Warbird Adventures, Inc., et al v FAA. The case is challenging a cease and desist order issued to Warbird Adventures by FAA in which the FAA alleges that the company is operating a Limited Category aircraft for compensated flight training without a required exemption. The Limited category was established shortly after World War II to accommodate surplus military aircraft that otherwise did not have a type certificate. While Limited airworthiness certificates are no longer issued, many warbirds flying today still operate in the category.

Limited Category aircraft, like Experimental aircraft, are prohibited from carrying "persons or property for compensation or hire" (FARs 91.315 and 91.319(a)(2)).

The petitioner in this case is arguing that training in a Limited Category Aircraft is not operating the aircraft for compensation or hire. This assertion is based on the FAA's specific actions as to Warbird Adventures, prior applicable FAA interpretations, and the lack of any specific regulation that prohibits training in Limited Category Aircraft. The FAA disagrees, and the petitioner has exercised their right to elevate the case to federal court and ask the opinion of a judge.

The participants in this amicus brief (called amici in legal parlance) are not weighing in on the merits of the petitioner's argument. Rather, the brief seeks to provide the judge with essential background to make an appropriately limited decision based on the key questions of the case and nothing more.

EAA and the other amici are concerned that an overly broadly worded ruling by the court could interfere with the right of Limited Category and Experimental Category owners to receive training in their own aircraft. While hiring such aircraft for training has usually been conducted via exemption or LODA, owners and operators have always been able to pay instructors to fly in their own aircraft. Such activities are essential for transition and recurrent training. Compensation to a flight instructor historically has been interpreted as compensation for instruction, not carrying passengers or property for hire. Recent FAA statements contain language that implies that all training in Limited category aircraft, compensated or not, requires an exemption. Such an interpretation has not been previously articulated or enforced by the FAA, but if the court were to approve of such an interpretation of the applicable rules, it would devastate the warbird community.

"Legal rulings and interpretations involving the Federal Aviation Regulations can have unpredictable outcomes," said Sean Elliott, EAA Vice President of Advocacy and Safety. "In joining and helping to write this brief, we aim to ensure that the ruling in this case does not have far-reaching consequences for warbird and homebuilt owners. It is vital that nothing hinders the rights of these owners to train in their own aircraft."

EAA participated in writing and filing this brief thanks to the volunteer work of the EAA Legal Advisory Council. This group of experienced aviation attorneys advises EAA and its members on key legal and regulatory matters free of charge. They are a prime example of the "members helping members" ethos shared by all EAA volunteers. We cannot thank them enough.