Warbird Adventures, Inc. v. Federal Aviation Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13765
Non-Argument Calendar
____________________
WARBIRD ADVENTURES, INC.,
Petitioner,
versus
FEDERAL AVIATION ADMINISTRATION,
Respondent.
____________________
Petition for Review of a Decision of the
Federal Aviation Administration
Agency No. FAA 2020-0534
____________________
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2 Opinion of the Court 22-13765
Before WILSON, J ORDAN, and B RANCH, Circuit Judges.
PER CURIAM:
Warbird Adventures, Inc. (Warbird) petitions for review of
a Federal Aviation Administration (FAA) decision finding that, by
providing flight instruction in a “limited category civil aircraft,” it
violated the prohibition against operating such an aircraft “carrying
persons or property for compensation for hire,” contained in 14
C.F.R. § 91.315 and ordering it to pay a civil penalty. After careful
review, we deny the petition.
I.
The following material facts are not disputed. Thom Rich-
ard owns and operates Warbird, a flight school in central Florida.
Warbird provides flight instruction in vintage aircraft classified as
Limited Category aircraft. On January 31, 2020, Warbird operated
one of its Limited Category aircraft with Ray Allain on board. Al-
lain paid Warbird for flight instruction.
The FAA issued a Cease and Desist Order to Warbird to stop
flight instruction in Limited Category aircraft1 and instituted an
1 Once affirmed by the FAA, Warbird appealed the Cease and Desist order to
the U.S. Court of Appeals for the District of Columbia. In an unpublished
opinion, the D.C. Circuit denied Warbird’s petition and addressed the argu-
ment that flight instruction was not carrying under the regulation very briefly:
Warbird argues that § 91.315 does not prohibit paid flight
training. We disagree. A flight student is a “person.” When a
student is learning to fly in an airplane, the student is
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22-13765 Opinion of the Court 3
administrative enforcement action for violating 14 C.F.R. § 91.315.
As to the administrative enforcement action, Warbird and the FAA
cross-motioned for summary judgment with Warbird arguing that
the prohibition on “carrying persons” under § 91.315 does not
cover flight instruction. The ALJ held that “carrying” under the
regulation is a broad term that includes flight instruction and found
Warbird violated the regulation. The ALJ assessed a civil penalty
of $2,500.
Both parties appealed the ALJ’s decision. The Federal Avia-
tion Administrator affirmed the finding of the violation but modi-
fied the civil penalty by increasing it to $5,500. Warbird now seeks
review of the Administrator’s decision.
II.
We have statutory authority to “affirm, amend, modify, or
set aside any part” of the Administrator’s order. 49 U.S.C.
§ 46110(c). But our standard of review is deferential; “we will up-
hold the agency’s decision unless it is arbitrary and capricious, an
abuse of discretion, or otherwise contrary to law.” Aerial Banners,
Inc. v. FAA, 547 F.3d 1257, 1260 (11th Cir. 2008) (per curiam); see 5
U.S.C. § 706(2). Thus, “we will set aside the FAA’s order on sub-
stantive grounds only if the agency relied on improper factors,
“carr[ied].” And when the student is paying for the instruction,
the student is being carried “for compensation.”
Warbird Adventures, Inc. v. Fed. Aviation Admin., 843 F. App’x 331, 332 (D.C. Cir.
2021) (per curiam) (internal citations omitted).
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4 Opinion of the Court 22-13765
failed to consider important relevant factors, or committed a clear
error of judgment that lacks a rational connection between the
facts found and the choice made.” Aerial Banners, Inc., 547 F.3d at
1260 (internal quotation marks omitted). And the Administrator’s
findings of fact “are conclusive” if supported by substantial evi-
dence. 49 U.S.C. § 46110(c).
III.
In its petition, Warbird challenges the Administrator’s deci-
sion finding that “carry” under 14 C.F.R. § 91.315 includes flight
instruction. Specifically, Warbird argues that “carrying persons . . .
for compensation or hire” in 14 C.F.R. § 91.315 does not include
flight instruction. Because Warbird provided flight instruction to
students, it could not have violated 14 C.F.R. § 91.315.
When interpreting an unambiguous regulation, “[t]he regu-
lation . . . just means what it means—and the court must give it ef-
fect, as the court would any law.” Kisor v. Wilkie, 139 S. Ct. 2400,
2415 (2019) (majority). “[T]he possibility of deference [to an
agency] can arise only if a regulation is genuinely ambiguous.” Id.
at 2414. “[I]f the regulation satisfies the ‘genuinely ambiguous’ re-
quirement, the agency reading must be ‘reasonable.’” Rafferty v.
Denny’s, Inc., 13 F.4th 1166, 1179 (11th Cir. 2021) (quoting Kisor, 139
S. Ct. at 2415). Then, “a court must make an independent inquiry
into whether the character and context of the agency interpretation
entitles it to controlling weight.” Kisor, 139 S. Ct. at 2416.
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22-13765 Opinion of the Court 5
The regulation at issue states that “[n]o person may operate
a limited category civil aircraft carrying persons or property for
compensation or hire.” 14 C.F.R. § 91.315.
Warbird argues that the regulation is unambiguous and that
the ordinary definition of “carry” does not include flight instruc-
tion. Warbird argues that even if the regulation is ambiguous, then
we should not rely on the FAA’s interpretation because it is incon-
sistent with the regulation.
We agree with Warbird that the regulation is unambiguous,
but we do not agree that “carry” does not include flight instruction.
Like the Administrator and the ALJ, we find that “carry” has a
broad meaning and includes flight instruction.
The FAA has not defined “carry” within its regulations.
When construing regulations, we “give effect to the natural and
plain meaning of the words.” Washington v. Comm’r of Soc. Sec., 906
F.3d 1353, 1362 (11th Cir. 2018). When determining the plain
meaning, we look to the relevant dictionaries, such as Black’s Law
Dictionary, which defines “carry” as “[t]o convey or transport.”
Carry, Black’s Law Dictionary (11th ed. 2019). When a person re-
ceives flight instruction, that person is present in the aircraft.
While in the aircraft, the person receiving flight instruction is being
“convey[ed] or transport[ed]” by the pilot who is giving the instruc-
tions. Id. Thus, a pilot giving flight instructions is carrying the stu-
dent for the purpose of the regulation.
Further, as the FAA points out, other regulations that ad-
dress operation of aircraft for compensation or hire have included
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6 Opinion of the Court 22-13765
exemptions for flight instruction. See 14 C.F.R. § 91.327; 14 C.F.R.
§ 119.1(e)(1). Thus, had the FAA wanted to exempt flight instruc-
tion from 14 C.F.R. § 91.315, it could have explicitly done so.
Warbird also argues that the FAA’s interpretation of 14
C.F.R. § 91.315 has changed and is not entitled to any deference.
Because we conclude that the regulation is unambiguous and co-
vers Warbird’s conduct (Warbird does not contest the ALJs under-
lying factual determinations), we need not address Warbird’s re-
maining arguments about the FAA’s interpretation of this regula-
tion. See Palm Beach Cnty. v. FAA, 53 F.4th 1318, 1330 (11th Cir.
2022) (“[I]f we find [the FAA] regulations to be unambiguous, we
needn’t and won’t defer to the FAA’s view.”).
IV.
We find no reversible error in the agency’s final decision
finding that Warbird violated 14 C.F.R. § 91.315 and assessing a
civil penalty of $5,500. Warbird’s petition for review is DENIED.
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