interesting because it involves seventy five years of well documented aviation history and you have a his emergency cease and desist order which is basically issued against my client to stop him from  immediately providing quality training and he limited category aircraft which is a surplus military world war two aircraft or flight training for hire without an exemption to the regulations exemption well let's look at the history right and that's what i did and many things were learned during that process but most importantly i found that even the f of world war two we had surplus military aircraft nobody knew that it was going to be a demand for these airplanes so the c h p civil aeronautics board predecessor to the f a a actually enacted promulgated a regulation par naing that said ok we'll allow civilians to use these surplus military aircraft including those that were built specifically designed by the military for training purposes high performance military training that's great and so the issue the regulation which had a limitation all rated this part is for the purpose of making available to the public certain military surplus aircraft which were originally designed for the military services of the united states for combat and other specialized purposes the flight training and which experience military service has shown to be safe for operation however there is cubby on the ca be made he's a credit available to the public so long as the flights actually define the term passenger which was an occupant of the aircraft other them a crew member so there's a reason why the c a b g said you can't carry a passenger it didn't say you can't carry a crew member and in fact when the this is a military type aircraft now into the civil air regulations shall not be used for the carriage of passengers or cargo for compensation of hire every year that aircraft is inspected and that placard has to remain in the aircraft and remains there today so nine hundred and forty nine dollars the c a b continue to enact regulations and they said in that case student instruction shall not be considered the carriage of persons for compensation or hire so there's an certain about this you say the amendment to the this regulation that changed the word passenger to persons happened in one thousand nine hundred and sixty two correct and so that presents a problem for you doesn't it not at all because men well actually it's not a problem for you it's a problem for the f a a and the problem is this and if you go to the federal  register that you're talking about and that year the preamble says that they were intending no substantive changes correct correct in fact to the lens others said the point is that if in fact that's when the amendment occurred the amendment from passenger to person didn't change anything they say hey relies on the idea that it's persons rather than passengers right and it's presumably the language was in the federal register this did not interpretation or they just didn't do the research will own that based on based on information and communicate your client that he was violating the regulation so we're adopting the f h position which is the correct position along i see that i've used my time i'd like to reserve that i have a couple questions for you st of all what what is the status of the regular administrative proceeding not the emergency obvious i'm glad yes judge i has that last week and so now the chief judge from the national transportation safety board has been sitting on a motion to stay that was filed by the f a a three months ago and the basis for the motion to stay by the administrator is this case is pending before the d c circuit court of appeals so they're waiting for you to put a camera on the now we should we should be waiting for them because if they rule then this case is moot well scientifically designed to do to cause a problem and the f a a pinpointed that was the emergence ok my nd question my nd question is the is there anything in the record to indicate the only thing i see is that they at that your client advertise yes that could do it but did it in fact fly or train in flight do in flight training right that he has so keep in mind  are the answer is no when when i got the letter from the f a a i responded said look the flight training itself we don't believe is a violation of the regulations but there were or did they are frightening to shut you down with an not a formal letter i don't think i think the formal letter that you're talking about comes in two thousand and twenty but there was that notification of the f a a and then if you skip t paragraphs down to paragraph thirteen on january st two thousand and twenty warburg operated the plane was a question relating to those well look well so the point was just that f a a inspectors advise richard as of april th seen that carrying persons for compensation was a violation and then there's a further out geisha and that after that oh yes i mean other words you know if you're the f a a and you're thinking i understand that mr whitman's client has a different position on the law here if if the f a a responsibility is to protect the public what basis would be f a a have to believe that warburg would not be flying during that period when we're part was challenging the is position well i was in constant communication with the f a a throughout the process after these letters and even after the emergency cease and desist order was issued i let them know that we're not flying right so but if you know it begs the question  whether or not the operation of my client's aircraft for hire in the instructional setting is an emergency related to air safety and it is not well there isn't there i mean there  basis in the record to thank that unauthorized flight of this kind of plane is in this does present a safety record oh no that's that's merely sayso of the agency there's absolutely no evidence to support that whatsoever it was built designed for flight training to military specifications when something is built to a mil spec military specifications it's no that's a gold seal of engineering and the fact that this aircraft around is going to be eighty years now is still flying i thought the f a a says i thought the f a a said that actually will work too we were understandably in something of a rush to build as many planes as we could and so we actually didn't require the same kind of safety standards that we later required and that we and i believe so but i'm not absolutely sure he is part owner if not complete owner of that and the company so if he goes up without a passenger without a no in flight he just operates the plane i take it that and the corporation owns it i take it that the a corporation compensates him isn't i was you know here i am actually he has the compensating corporation because the corporation is  shell company that jones owns an airplane right and to be only with a plane to fly is if mr richard gives money to the corporation which then that corporation has operated a limited category aircraft carrier mr richard as a passenger were person i should in a commercial setting but this is flight training so it's different ok  as was discussed in the other side's argument you know f a a during the course of more than a year repeatedly communicated to petitioners that their conduct ran afoul of the plain text of section ninety one thousand three hundred and fifteen dollars and despite that ongoing back and forth during which time as as a sort of documented in the administrative record during which time petitioners raised many of the same points that they now raised before this court a responded by pointing petitioners not only to the text of ninety one through fifteen as good as it currently exists but also to the text of various neighboring regulations which which which use materially similar  language referring to a caring of persons or property for compensation or hire in a way that is that is totally inconsistent with petitioners proposed reading of section ninety one thousand three hundred and fifteen and petitions really provide no response to what in petitioners view these other regulations mean if flight training is not included in the in the concept of caring persons or property for compensation or hire if if that phrase six passengers use that the regulation changed to be sure in that regulation there is a you know as sort of preamble that says in most significant respects this part does not attempt to change current procedures or practices but then the regulation goes on to in fact make a change to this to this regulations otes you know so the one thing we do know about this change is that i a change from the word passengers to the word persons and just sort of on its face the word persons is is a broader more capacious term than than the term passengers just as a matter of sort of natural or property for compensation or hire which is materially different from from regulations other regulations that f a a still has on the books that continue to use to refer to passengers those regulations that use the word passengers are almost all  or all have to do with with sort of additional garments for pilots whereas whereas here we're talking about certification requirements for an aircraft itself and so it makes sense that those terms  can you explain yes so so so the f a a regulates both pilots and planes and regulates this thing separately so so any aircraft that is operating in the united states today must be certified in a specific category by the f a a saying this is a plane that is airworthy to perform the following set of functions and is safe to perform the following set of functions and there are different categories there's the standard category which which has various subcategories and that's where most of commercial airplanes exist and then there's the land of special category certificates which is where we are now that whole scheme is is sort of separate from  limited to two flights in violation of this regulation which means that you could say you know that this flight could still be operated in conformance with this regulation in other words for any purpose for private or recreational uses as long as it's not being you know used to carry persons or property for compensation or hire so yes that's correct but again just to just just just to underscore this you know as explained in th briefing multiple other regulations that are very close in proximity to ninety one through fifteen and that place very similar limitations on other kinds of special category aircraft u identical or materials materially similar phrasing and refer to this prohibition against carrying of persons or property for compensation or hire and then move on to in various ways say despite or carving out from that that prohibition flight training and if the carriage of persons or property for compensation or hire doesn't include flight training as petitioners suggest then all of these other regulations that expressly provide ways for people to to provide flight training not withstanding illegal for you to do what you're doing yeah that's an inspector had mentioned a year earlier but you know anyone who's dealt with you know for example a building code inspector while doing a home  illegal and to show us the work eight of way until july th two thousand and twenty and then i see nothing in the record and certainly nothing in the emergency order that provides any evidence violation of the law after he received that letter on july nd two thousand and twenty so tell me why we shouldn't say this there's no last time we know based on anything in this record right so so so so if you look at the july nd letter which is this is day twenty four to twenty five and particularly looking at say twenty five  here during that back and forth that happened in july which was which was spurred by f a a becoming aware of facebook advertisements that were posted to facebook soliciting people inviting people to come and fly this in this aircraft at upcoming flight exhibition shows there's this paragraph on page twenty five saying you know again commemorating you know memorializing at you on this and saying accordingly i ask that you respond to this letter stating whether your clients intend to charge persons to carry them and flights in the p forty has a website and had a presence in the case and if your response does not provide sufficient assurances that your clients do not intend to do this then then at that point the cease and desist order would be issued and so so  was making it very clear its position that this was unlawful it gave petitioners the chanced to to to say i think exactly we had in mind which is no no we're not doing this we haven't been doing this we don't intend to do this and if you look at their response their response continued to essentially rely on the same theory that they presented this court which is presumably that no no we don't intend to do this because we are intending only to to take people up in the air for for for for flight training regulations so to the extent that the state of the world was the petitioners never intended to do to do that and never intended to operate this plane in violation of the regulation then you know then it's a season to sort of that does nothing and that goes to judge issues presented in the two proceedings that are still going on in the sort of agency level are specific in force when actions against both petitioners separately richards forwards and i believe my understanding of those is those are both based on showing proven past violations and so those really are more i think those are based on past proven and i'm not as intimately familiar with those with those two proceedings that i've been to but the issue presented in training or living history or other kinds of operations in the limited category aircraft for compensation and i don't mean impression that the f a a was rely on the continued advertising as circumstantial evidence that there were training training and i think i think more and more concretely you know that this plane was scheduled to be at specific flight exhibition shows you know sort of at specific dates i think coming up shortly you know with around the time the emergency could go to a flight show and the president of the company can pilot the point and there's nothing indicating that that isn't in any but i lation is not right that's correct it's a good guide to complete that sort of  of flights after july right and to be clear in flight training i'm sorry right now and sorry and to be to be clear that as you know the reason why these sorts of cease and desist orders are so uncommon is because it is it is sort of an uncommon circumstance that f a a found itself in here where it saw advertisements where someone was saying i am going to go out and conduct flights or i'm offering to the public flights that are in violation of a regulation you know that's that's the way in which this case is really like the case from the rd circuit it just doesn't happen that often that f a a learns in concrete or you know sort of has good reason to believe that a violation is going to take place before it happens and  plane to go up with mr richards piloting it and go to shows and so on and so forth but not to go up with a with it with somebody that's getting trained to be a pilot  no your honor you know this distinction you know between compensation or higher paid flights commercial flights oh no i understand i'm not questioning about the regulation i'm talking about the emergency order if it's supposedly based on safety then how do you explain the f a a is not doing anything about the point and what it's shows with lots of people watching and so on and so you know it's this is not super from a with those but this regulations really focus on the safety of of being in the aircraft and being on board the aircraft and the aircraft you know sort of you know danger poses to people on board the aircraft i guess it was a total aside that had nothing to my question has got nothing to do with this case but i'm curious this regulation doesn't apply no ask it doesn't it i don't know it's i i don't think it does it it might not i like sing in the opinion of is the sort of phrasing that that in other contexts courts i think have i've consistently found expresses an intent by congress to give pretty broad authority to ensure safety in  but that is the case that i think is the most analogous to what we have here and the administrative proceedings that's not something that your office has any control over and their decision to wait versus that's that's correct we haven't had any of those and then my understanding is that is that they are essentially in a holding pattern waiting for on this case i think but but again i don't i don't have any insight into that beyond what sins are publicly available documents responding to brief page five says any person wants to fly in a limited category aircraft and i quote is a forty duck privilege absent financial consideration that means the f a a is allowing my client to provide flight training in his aircraft as long have to understand something like twenty never has been and never can be considering carrying flight training for hire considered carrying a person for compensation it would turn the entire industry upside down i'll give  flight training sign his logbook and we have just done what we wanted to set out to do but i can accept if he is a person being cared for compensation i would need to have an air carrier certificate issued by the f a a which was the flight now comes which is not one of my didn't know that there was a rule out there that said he couldn't provide flight training for compensation because it's nowhere in the history of the f a a we ask that you that you vacate and set aside the emergency order but not only because it's not