Warbird Adventures and its president and chief pilot Thom Richard have asked the U.S. Court of Appeals to issue an emergency stay for FAA cease-and-desist order prohibiting flight training in a Curtiss P-40 Warhawk trainer, arguing the agency’s actions essentially ban flight training in limited-category aircraft.

Issued on July 28, the emergency cease-and-desist order says Warbird Adventures violated FAR 91.315 by operating a limited category civil aircraft while providing flight training for hire. Also, on July 28, the FAA issued an order suspending Richard’s airman and flight instructor certificates for 120 days. That order has been stayed pending appeal. And, in tandem, the agency proposed a civil penalty of $6,750.

The company is hoping to receive a decision on the emergency stay before moving ahead on arguments on the merits of the FAA actions.

In the cease-and-desist order, the FAA said it had previously met with the parties involved, explaining that that “carrying persons on a limited category aircraft for any purpose for compensation or hire without an exemption under 14 C.F.R. part 11 constituted a violation of 14 C.F.R. § 91.315.” The order further said that any instructor paid to provide flight training “is operating the aircraft for compensation or hire,” regardless of whether acting as a pilot in command. Further, the agency said, FAR 91.315 does not provide any exceptions for flight training and such activity requires an exemption.

However, in the partial emergency stay request, Warbird Adventures contended that “the FAA’s baseless assertions are not supported by substantial evidence and are contrary to law.”

The company noted that P-40 limited-category aircraft have been used for civilian flight training/student instruction for more than 70 years. “Without basis in fact or law, the FAA order alleges that by providing flight training/student instruction for compensation or hire, petitioners have operated a civil aircraft as a commercial operator, which is regulated by 14 C.F.R. Part 119.”

Richard has been a full-time professional warbird flight instructor for the past 25 years and his 12,700 total flight hours include more than 7,000 hours flying World War II warbirds and 1,900 hours teaching aerobatic maneuvers but has never before been found in violation.

Further, the company pointed out the 1942 Curtiss P-40, N977WH, in question is among the few of the model equipped with a dual seat and dual flight controls—a variant designed for flight training. Because of the unique operational characteristics of the aircraft, the FAA requires pilots to receive specialized, high-performance, complex, and tailwheel pilot logbook endorsements by an instructor so they can operate the aircraft as a PIC, the company noted.

Stating the belief that the cease-and-desist order “prohibits Mr. Richard and other certified flight instructors from providing flight training in any limited-category aircraft, including the P-40,” the company argued that said such a narrow interpretation would make the FAA’s requirements to undergo certain flight training to operate the warbird nonsensical.

“Historically, limited-category aircraft have been utilized for flight training/student instruction ever since the end of WWII, and the FAA has never before prohibited flight training/instruction for compensation or hire in a limited-category aircraft by issuance of a cease-and-desist order,” the company said. “To the contrary, the FAA has emphatically held that the compensation a certificated flight instructor receives for flight instruction is not compensation for piloting the aircraft; rather, it is compensation for the instruction provided. Therefore, ‘a certificated flight instructor who is acting as pilot in command or as a required flight crewmember and receiving compensation for his or her flight instruction is not carrying passengers or property for compensation or hire, nor is he or she, for compensation or hire, acting as pilot in command of an aircraft.’”

Meanwhile, the Aircraft Owners and Pilots Association said it was closely assessing the case, “which raises concerns that have the potential to more broadly impact flight training and safety in the warbird community and beyond.” Important to the association was that “aircraft owners should certainly have access to flight training pathways and guidance that are safe, clear, and understandable for all pilots including in aircraft that are rare and have unique flight characteristics such as historic military warbirds.”