### BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICEDFTHE SECRETARY WASHINGTON, D.C.

In the matterofthe cancellation ofthe AirTaxi authority issued to: DocketDOT-OST-2012-0022 VIH COUGARHELICOPTERS, INC.
MOTION OFVIH COUGAR HELICOPTERS,INC. FORAN ORAL EVIDENTIARYHEARING BEFORE AN ADMINISTRATIVE LAWJUDGE AND FOREXPEDITED CONSIDERATION Communications with respect to t,his document should be sentto:

David M. Nadler David Y. Yang AndrewE. Smith DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com yangd@dicksteinshapiro.com smitha@dicksteinshapiro.com Counsel to VIHCougar Helicopters, Inc.
Dated: March 20, 2012

DSMDB-3040954v2BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C.

In the matter ofthe cancellation ofthe Air Taxi authority issued to: Docket DOT-OST-2012-0022 VIH COUGAR HELICOPTERS, INC.
MOTION OF VIH COUGARHELICOPTERS, INC. FORAN ORAL EVIDENTIARY HEARING BEFORE AN ADMINISTRATIVE LAWJUDGE AND FOR EXPEDITED CONSIDERATION Pursuantto Rules 11 and 208 ofthe Rules ofPractice (14 C.F.R. §§ 302.11, 302.208) of the Department ofTransportation ("Department"), VIH Cougar Helicopters, Inc. ("VIH Cougar"), by and through the undersigned counsel, respectfully submits this motionrequesting that the Department hold an oral evidentiary hearing before an Administrative LawJudge ("ALJ") priorto issuing any final order regarding VIH Cougar's status as U.S. Citizenunder 49 U.S.C. §40102(a)(15), ortaking any other actionregarding VIH Cougar's existing exemption authority as an air taxi operatorunder 49 U.S.C. §40109(£) and 14 C.F.R. Part 298. Given the irreparable nature ofthe harm that VIH Cougar submits would result ifthe Department declines to afford VIH Cougar a hearing before issuing a final order, VIH Cougar respectfully requests that the Department give this motion expedited consideration and advise by March 30, 2012 whether it will grant VIH Cougar a hearing in connection with these proceedings. I. FACTUAL BACKGROUND Four years ago, on April 24, 2008, the Department initiated a review ofthe citizenship status ofVIH Cougar, a U.S. air carrier operated and controlled by U.S. citizens. See Order to

DSMDB-3040954v2Show Cause, DocketNo. DOT-OST-2012-0022 at 1 (Mar. 12, 2012) ("Orderto Show Cause"). What has transpired since then is recounted below. 

### A. THE DEPARTMENT'S INFORMATION REQUESTS AND VIH COUGAR'S RESPONSES During the course ofits years-long investigation, the Department has issued a series of informational requests 1regarding VIH Cougar's air service operations withinthe United States to determine whether it was complying with certain economic requirements under federal aviation law. 

### ld. In response to these inquiries, VIH Cougar and other alleged affiliates from which the Department also sought inforillation have submitted five detailed responses, each accompanied byvoluminous supporting documents, multiple declarations from management, and a host ofother information requested by the Departmentrelating to VIH Cougar's and those companies' relationships, operations, employees management structure, business structure, contracts, customers, and finances.2 Throughout this extendedprocess, VIH Cougarhas been fully transparent and responsive to the Department's review ofits status as a bonafide U.S.- owned and operated air carrier. 

### B. THE DEPARTMENT BASES ITS SHOW CAUSE ORDER ON CREDIBILITY DETERMINATIONS On March 12, 2012, the Department issued VIH Cougar an Orderto Show Cause, which requests a response from VIH Cougar as to why the Department should notmake final its tentative determination that, despite the sworntestimony ofsenior management, bona fide copies ofbusiness documents, including fully executed contracts reflective ofarms lengthnegotiations and terms and conditions standard in the commercial aviation marketplace, and no affirmative

1See DOT letters dated April 24, 2008, July 10, 2009, and July 9, 2010. 2 See VIH letters previously submitted dated June 20,2008,November 6, 2008, August 10, 2009, September 30,2010, and November 17,2011. 2 DSMDB-3040954v2evidence for refuting any ofthese points, VIH Cougar is allegedly under the defacto control of Mr. Kenneth Norie, a Canadian citizen. See Orderto Show Cause at 1. Although the Department concedes that 76 percent ofVIH Cougar is owned and controlled by Mr. William Steeper, Mr. Steeper is a U.S. citizen, and, thus, VIH Cougar also is a U.S. citizen under the statutory citizenship requirements of49 U.S.C. §40102(a)(15), the Department has subjectively determined that under the "totality ofthe circumstances," the company is somehow under the "actual control" ofMr. Norie, a Canadian citizen and ineligible for exemption authority as an air taxi operator under 14 CFRPart 298. !d. at 3-8. The Department's tentative conclusion in this regard is basedprincipally, ifnot exclusively, on a credibility determination ofMr. Steeper'sprior written testimony submitted in connection with these proceedings. Indeed, the Departmenthad previously implied, but has nowexpressly and affirmatively stated, that it finds the "credibility ofVIH Cougar" in this matterto be "diminish[ed]," even though the basis for thatposition has been corrected, a fact which the Department fails to mention or acknowledge. !d. 

### C. THE DEPARTMENT SUMMARILY REJECTS MR. STEEPER'S SWORN DECLARATION REGARDING VIH COUGAR'S CONTRACTUAL AGREEMENTS Forexample, Mr. Steeper has testified in a sworn declarationthat VIH Cougar's contractual agreements (complete and executed copies ofwhich have been providedto the Department) hadbeen negotiated and**ex~cuted** at arm's length with companies operated by Mr. Norie and that the agreements also were non-exclusive and non-binding, similarto terms typically found in the commercial marketplace for such services. !d. at 6. In this regard, the agreements concern only uncontroversial subjects, including: (1) the dry lease ofaircraft (a standard practice in the U.S. commercial aviation market); (2) the separate provision ofcertain

3 DSMDB-3040954v2flight and crewpersonnel; (3) the rental ofhanger space, facilities, and inventory; and (4) the provision ofcertain administrative support and bookkeeping services. Not only has the Department, in prior cases, approved ofsuch inter-company arrangements under circumstances almost identical to those here (see e.g., DHLAirways, Order 2004-5-10, DocketNo. OST-2002-13089, 2004 DOT Av. LEXIS 404 (May 13, 2004); see also, DHLAirways, Inc. (ASTAR), ALJ Recommended Decision, DocketNo. OST-2002-13089, 2003 DOT Av. LEXIS 1086 (Dec. 19, 2003)), the Department has expressly acknowledged in this case that the VIH Cougar contracts appear "to be non-binding and nonexclusive," which further reinforces the fact that the agreements are bona fide arrangements that embody terms and conditions that are ubiquitous in the commercial aviation services market. Indeed, by the Department's own admission, it "encourage[s] robust partnerships between domestic and foreign air carriers, and has not found such relationships indicative ofundue foreign control." Oct. 6, 2011 DOT Ltr. at 4-5. Nevertheless, the Departmenthas summarily rejected Mr. Steeper's

sworn declaration testimony that the agreements at issue are arms' length transactions, and instead arbitrarily concludedthat VIH Cougar's supposedly "extensive reliance and dependence

on VIH Group was a means for non-U.S. citizens to exert control over VIH Cougar and its operations," all without adducing any actual evidence to back up the assertion. Order to Show Cause at 7. 

### D. THE DEPARTMENT DOES NOT BELIEVE MR. STEEPER'S SWORN DECLARATIONAS TO HIS ROLE AS OUTSIDE COUNSEL TO THE VIHGROUP Likewise, the Departmenthas taken issue with the fact that in addition to his role and responsibilities as the owner and president ofVIH Cougar, Mr. Steeper serves as outside counsel to the VIH Group ofcompanies. Again, however, Mr. Steeperhas provided sworn testimony in his declaration that he maintains a general lawpractice in which, along with his representation of 4 DSMDB-3040954v2the VIH Group, he represents a number ofindependent clients that have no relationship or connectionto the VIH Group, and that**h~** is fully capable ofseparating his duties as the president ofVIH Cougar and as counsel to the VIH Group. Indeed, the Department has explicitly found such dual capacities acceptable and nottantamount to evidence ofimproper foreign control (see DHLAirways, 2004 DOT Av. LEXIS 404, at *73). Nonetheless, the Department contends that Mr. Steeper is not credible, is not independent from VIH Group, and that his role as outside counsel to VIH Group somehow amounts to the day-to-day control ofVIH Cougarby VIH Group, even though the Department has provided no basis for doubting Mr. Steeper's sworn written testimony onthe nature and scope ofhis law practice. Order to Show Cause at 4-6. E. THE DEPARTMENT DOES NOT FIND CREDIBLE VIH COUGAR'S EXPLANATIONS FOR THE DISCREPANCIES IN A HANDFUL OF VIH COUGAR CORPORATE FILINGS Finally, the Department claims that it considered in its "totality ofthe circumstances" analysis a number ofunintentional, scrivener's "discrepancies" in a handful ofthe more than two dozen state corporate filings that VIH Cougarhas made over nearly the past decade. !d. at 7. Specifically, the Department asserts that although representations have been made that neither Mr. Norie nor Mr. Steeperhas ever been an officer ofthe other's companies, a 2008 Louisiana corporate filing as well as a 2004 Idaho filing indicated that Mr. Norie was an officer ofVIH Cougar, and that a 2010 Alaska filing indicated thatMr. Steeper was an officer ofCougar Helicopters. Although the Department emphasizes and relies onthese, and onlythese, three filings as a basis for "diminish[ing] the credibility ofVIH Cougar," the Department ignores VIH Cougar's explanationthat those statements were inadvertent errors, all ofwhichhave since been corrected, and that Mr. Norie has never in fact been an officer ofVIH Cougarnor has Mr. Steeper ever in fact been an officer ofCougarHelicopters.



### 5 DSMDB-3040954v2More importantly, however, the Department fails to mention that none ofthe other two dozen VIH Cougar filings that have been filed overnearly the past ten years (nor any ofthe thousands ofpages ofother documents that have been produced to date in connectionwith these proceedings) has had any similar issues oridentified Mr. Norie as an officer ofVIH Cougar. The Department's willingness to make credibility determinations and to focus only on a handful ofsporadic and inadvertentmistakes, while ignoring the overwhelming majority ofVIH Cougar's corporate reports have been correctly filed, coupled with the Department's leap to conclusions about VIH Cougar's credibility, raises troubling concerns aboutthe propriety of these proceedings. They also demonstrate why an oral evidentiary hearing before a neutral ALJ (with no priorconnectionto the Department's investigation) is necessary to avoid prejudice and irreparable harm to VIH Cougar from the issuance ofan erroneous final decision revoking its air taxi exemption, and to ensure that the proceedings are conducted fairly and with the utmost transparency. II. ARGUMENT A. THE U.S. CONSTITUTION REQUIRES THE DEPARTMENT TO GIVE VIH COUGARAN EVIDENTIARY HEARING BEFORE TERMINATING ITS AIRTAXI EXEMPTIONAUTHORITY The U.S. Constitution requires that the Departmentprovide VIH Cougarwith notice and

an evidentiary hearing before issuing any final order in this matterrevoking VIH Cougar's air taxi exemption authority, otherwise VIH Cougar will be deprived ofproperty, without due process oflaw. See U.S. Cont. amend. V. "The fundamental requirement ofdue process is the opportunity to be heard at a meaningful time and in a meaningful manner." English v. District of Columbia, 2011 WL 452788 at *6 (September 30, 2011) (citations omitted). "However, due process is not a concept that is unrelated to time, place and circumstances but instead is flexible and calls for suchprocedural protections as the particular situation demands." Id(citations 6 DSMDB-3040954v2omitted). "Hence, the form ofnotice and hearing required in a given circumstancerequires a balancing ofthe competing public and private interests involved." Id(citations omitted). The U.S. Supreme Court has long held that whether a given process is sufficientto comply with constitutional requirements depends on consideration ofthree factors: (1) the nature ofthe private interest that will be affected bythe official action, (2) the risk oferroneous deprivation of such an interest through the procedures used, and (3) the government's interest, including any burdens that additional or alternative procedural requirements would entail. See Mathews v. Eldridge, 424 U.S. 319, 333, 335 (1976)." Here, the nature ofthe private interest that will be affected bythe Department'sproposed action is substantial, as the termination ofVIH Cougar's air taxi exemption authority will essentially amountto a "corporate deathpenalty" for the company by putting VIH Cougarout of business. Second, there is a substantial risk for error in taking such an actionbecause the decision would hinge onthe credibility ofMr. Steeper, and neitherhe nor any other witnesses will have been given the opportunity to present live testimony before a neutral ALJ who can accurately observe and assess their demeanors and veracity on a first-hand basis. Finally, the Department's interest here is miniscule, Since, at all relevant times, VIH Cougarundisputedly has conducted safe air carriage operations and, therefore, there are no issues impacting the health, safety or welfare ofthe traveling public or any other segment ofthe public. In addition, the burden onproviding VIH Cougar a hearing is also low, as the time and resources needed to conduct a hearing would bereasonable and proportional to the limited issues raised bythe Department's Orderto Show Cause. Indeed, as discussed below, evidentiaryhearings are

common and evenrequired in many similar contexts, such as where the Department seeks to revoke a certificate ofpublic convenience and necessity that also affects a carrier's ability to

7 DSMDB-3040954v2operate in the United States. See 49 U.S.C. §41110(a)(2), (e)(2). Accordingly, weighing all three ofthe foregoing Mathews factors, VIH Cougar's procedural rights to due process would be violated ifthe Department were to rescind its air taxi exemption authority underthe circumstances present here without first providing VIH Cougar an oral evidentiary hearing before an ALJ. B. UNDER THE FEDERAL AVIATION ACT AND ITS IMPLEMENTING REGULATIONS, VIH COUGARIS ENTITLED TO AN EVIDENTIARY HEARING BEFORE THE DEPARTMENT TERMINATES ITS AIRTAXI EXEMPTION AUTHORITY 1. LegalStandards Underthe Federal Aviation Act, 49 U.S.C. § 40101 etseq., in order for VIH Cougarto conduct air carrier services inthe United States it must either: (I) hold a certificate ofpublic convenience and necessity ("Certificate"}issuedpursuantto 49 U.S.C. §§ 41101 and 41102 or (2) be exempt from those requirements under 49 U.S.C. § 40109(f) and 14 C.F.R. Part 298. Both methods require VIH Cougarto be a "citizenofthe United States" as defined under49 U.S.C. §40102(a)(15). 3 Ifthe Department grants a Certificate, it may initiate a continuing fitness reviewpursuant to 49 U.S.C. § 41110(e) under whichthe Department assesses changes that may affect an air carrier's continuing fitness, including ownership and control. See 49 U.S.C. § 41110(e). Ifafter

a continuing fitness review, the Department determines that an air carrier is no longer owned by

3 49 U.S.C. §40102(a)(15) defines a "citizen ofthe United States" as (1) "Anindividual who is a citizen ofthe United States;" (2) "Apartnership each ofwhose partners is an individual who is a citizen ofthe United States; or" (3) "A corporation or association organized underthe laws ofthe United States or a state, the District ofColumbia, or a territory orpossession ofthe United States, ofwhichthe president and at leasttwo-thirds ofthe board ofdirectors and other managing officers are citizens ofthe United States, which is underthe actual control ofcitizens ofthe United States, and in which at least 75 percent ofthe voting interest is owned or controlled bypersons that are citizens ofthe United States." 8 DSMDB-3040954v2a U.S. citizen, Section 41110 explicitly states that a Certificate can only be revoked after notice and an opportunity for a hearing is provided. See 49 U.S.C. § 41110(a)(2) and 41110(e)(2). Further, 14 C.F.R. § 302.208 states that "[a]ny person may file a petition for oral evidentiary hearing, oral argument, an initial orrecommended decision, or any combination of these." 14 C.F.R. 302.208. Petitioners must only demonstrate that "one or more ofthe criteria set forth in§ 302.207 are applicable to the issues for which an oral presentation orjudge's decision is requested." 

### !d. Specifically, 14 C.F.R. § 302.207 indicates that a hearing before an ALJis warranted ifthe: (1) use ofwritten procedures will prejudice a party; (2) material issues ofdecisional fact cannot adequately beresolved without oral evidentiary hearing procedures; or (3) an oral evidentiary hearingprocedure is otherwise required bythe public interest. See 14 C.F.R. § 302.207(a)(l)-(3). As shown below, where, as here, not onebut

### allthree ofthese conditions exist, an oral evidentiary hearing before an ALJ is necessary for developing a full and transparent evidentiary record on which to base a final decision and to avoidthe appearance of any impropriety or due process concerns. 2. TheDepartment's Proposed Cancelation ofVIH Cougar's Air Taxi Exemption Authority Is Equivalent to a Revocation ofa Certificate Issued under 49 U.S.C. §§ 41101 And 41102 and, Thus, Notice and an Evidentiary Hearing Before an ALJAre Required The Department'stentative decision to cancel VIH Cougar's airtaxi exemption authority pursuant to 49 U.S.C. § 40109(f) and 14 C.F.R. Part 298 is tantamountto the revocation ofa Certificate under49 U.S.C. §§ 41101 and 41102, because the practical effect would be identical in that VIH Cougar will be no longer able to operate as an airtaxi in the United States. Accordingly, because a hearing before anALJ would be required before a Certificate could be revoked, the Department must also proviae VIH Cougarwiththe same due process before it can

9 DSMDB-3040954v2issue a final order in this matter revoking VIH Cougar's air taxi exemption and ability to operate in the United States. Here, there is no dispute that VIH Cougarhas been operating publicly since 1995 (previously known as Western Airways, Inc.) under Federal Aviation Administration oversight with an exemplary safety record, and that the Department's investigation itselftook almost four years before it issued its Order to Show Cause on March 12, 2012. A determination at this late juncture revoking VIH Cougar's ability to operate as anU.S. air carrier, over 16 years after it has been in operation and four years after the Department beganthis investigation, amounts to a deprivation ofa constitutionally-protectedproperty interest (the loss ofthe operation exemption, the ability to operate underthe exemption, and the ability to acquire a Certificate under the regulations) withoutprocedural due process. The Federal AviationAct ("FAA"), 49 U.S.C. §41110 establishes the necessary procedural due process requirements whenthe Departmentrevokes or suspends a company's ability to operate pursuantto 49 U.S.C. §§ 41101 and 41102. Inthese circumstances, it would be

a denial ofdue process, arbitrary and capricious, and contrary to the intent ofSection41110 not to require a hearing. Ifthe cancelation ofa Certificate is serious enough ofa property deprivation to require an evidentiary hearing, then so is the cancelation ofan air taxi exemption: the net effect ofboth actions is exactly the same- the revocation ofthe carrier's ability to operate in the United States. Since the net effect ofthe Department's findings would be the identical under either circumstance andthe FAA clearly contemplates an evidentiary hearing in connection with suchproperty deprivations, VIH Cougar should also be afforded an ALJ hearing in connection with these proceedings to revoke its air taxi exemption authority. See 14 C.F.R. §§ 302.17-302.32.

10 DSMDB-3040954v2Indeed, the Departmenthas itselfacknowledged in a document, entitled "Howto Become

a Certificated Air Carrier," thatthe denial ofmere applications filedpriorto when a company would normally being operations for failing to meet fitness requirements such as U.S. ownership and control, is often not appropriate to be decided only onthe papers. Specifically, the Departmenthas recognized: Ifan applicationraises substantive questions offact, is controversial, orpresents complex issues that cannot be resolved on the written record, the Department may direct that the matter be considered in an oral evidentiary hearing before an Administrative LawJudge. Once the application is assigned, the Judge will set a procedural schedule for exhibits, hearings, and briefs. Afterthese procedures have been completed, the Judge will review the information submitted and the arguments onbrief, and issue a recommended decision onthe applicant's fitness to provide the air transportation it proposes. Howto Become a CertificatedAir Carrier at 7, fn.9 (May 2005). Here the record raises significant questions ofsubstantive fact relating to Mr. Steeper's credibility. These fact questions can only be properly and objectively answered by an ALJ (who will not have been involved or connectedwith the Department'spriorreviewofthis matter), after the ALJhas heard Mr. Steeper's testimony onthe witness stand and allowed him to confront any evidence thatthe Department claims refutes his writtentestimony. There is also little doubtthatthe above-captioned matter is highly controversial and presents complex issues, as the Department's investigation itselfhas 

### takenfouryearsjustto reach a tentative decisionpoint, involved numerous informational requests from the Department, and entailed 

### five detailedandsubstantivesubmissions by VIH Cougar, each attaching voluminous documents relating to VIH Cougar's business operations and structure, management, employees, assets and finances, contractUal relationships and affiliations, and customer base. Ifa hearing under such circumstances is necessaryto determine a company's fitness to operate

### prior to receiving a certificate pursuant to an application, then it is certainly required here, where the

11 DSMDB-3040954v2Department is proposing to rescind VIH Cougar's ability to operate long after it has been publicly in operation for over 16 years. C. EVEN IF A HEARING WERE DISCRETIONARY, WHICH IT IS NOT, THE DEPARTMENT SHOULD PROVIDE VIH COUGARWITH A HEARING BEFORE IT REVOKES ITS AIR TAXI EXEMPTION AUTHORITY Even ifan evidentiary hearing were discretionary under these circumstances, which it is not, the Department should still provide VIH Cougar a hearing before it terminates its air taxi exemption authority. In this regard, the Department's regulations allowfor "anyperson" to petition for an oral evidentiary hearing, 

### see 14 C.P.R. 302.208, by demonstrating that: (1) use of writtenprocedures will prejudice a party; (2) that material issues ofdecisional fact cannot adequately be resolved without oral evidentiary hearing procedures; or (3) the assignment ofan application for oral evidentiary hearing is required by the public interest. 

### See 14 C.P.R. § 302.207(a)(l)-(3).4 All three ofthese factors are presenthere. Thus, even ifa hearing were not mandatory, which it is, it would be an abuse ofagency discretion notto afford VIH Cougar a hearing under its ownrules ofprocedure.5 1. Written Procedures Would Prejudice VIH CougarBecause the Show Cause Order Turns on Credibility Determinations First, the use ofwrittenprocedures will significantlyprejudice VIH Cougar because the Department's tentative decision in its Orderto ShowCause turns primarily, ifnot solely, onthe credibility ofMr. Steeper, who thus far has not been afforded any opportunity to testify live orto

4 VIH Cougarrespectfully requests that the Departmenttreat VIH Cougar's motion as a petition for such a hearing. 5 Pursuantto 14 C.P.R. § 302.208(a)(3), we anticipate that the time required for an oral evidentiary presentation wouldbe reasonable and not unduly burdensome relative to the issues raised by the Department in connection with these proceedings. Only a hearing before a neutral and impartial ALJ underthe Department'sprocedural rules can determine the credibility ofMr. Steeper's claims, and whetherunderthe "totality ofthe circumstances" VIH Cougar is a U.S. citizen. 12 DSMDB-3040954v2confront any ofthe Department's purported evidence which allegedly contradicts his sworn written testimony. Order to Show Cause at 3-8. 

### It is well-established that when factual findings rest on credibility determinations, an ALJ is in the bestposition to make suchdeterminations. See e.g., Castro v. SecurityAssur. Management, Inc., 20 A.3d 749, 756 (D.C. 2011); see also Jones v. Astrue, 623 F.3d 1155, 1160 (noting that an ALJ's credibility determinations are entitled to special deference because the ALJ has the opportunity to observe the claimanttestifying). An ALJ has a front-row seat as testimony unfolds, and because the ALJ will be removed and independent from the underlying investigation, such an individual is in the bestposition to weigh witness "tones ofvoice" and "hesitations ofspeech" and other verbal and non-verbal cues which facilitate credibility determinations. Castro, 20 A.3d at 756 (citations omitted). By contrast, deciding a case on a paperrecord alone often "miss[es] [the evidence's] heart and soul"- "like a dehydrated peach; it has neitherthe substance nor the flavor ofthe fruit before it was dried." 

### !d. (citations omitted). Since demeanor-based credibility determinations ofMr. Steeper canbe observed and determined only in person, and cannot be adequately resolvedjustonthe papers, a neutral ALJ should be assigned the task ofweighing Mr. Steeper'stestimony and credibility in

an oral evidentiary hearing with the opportunity for cross-examination and confrontation ofany allegedly adverse evidence. 

### 2. Key Material Issues ofDecisional Fact Turn on Credibility Determinations Second, key material issues ofdecisional fact that hinge directly on credibility determinations in this matter, include: (1) whether or not the inter-company agreements between VIH Cougar and the VIH Group for maintenance and othertechnical support services (which arrangements the Departmentpreviously has found acceptable in similar cases) were negotiated and executed betweenthe parties at arm's length; (2) whether such agreements are non-exclusive

13 DSMDB-3040954v2and non-binding; (3) whether Mr. Steeper's role as counsel to VIH Group, among numerous other independent clients, clouds or unduly influences his responsibilities overthe day-to-day control ofVIH Cougar; and (4) whetherthe alleged "discrepancies" in the information submitted by VIH Cougar are due to a handful ofisolated clerical errors. Orderto ShowCause at 3-8. None ofthese key issues offact can adequately be determined by the Department merely by examining the existing paper record, which is the only thing that the Departmenthas done thus far, because a proper determination ofthese, and other, critical issues can be resolved only by observing and evaluating witness credibility, demeanor, and temperament giventhat the Department has electednot to believe Mr. Steeper's written testimony on these points. 

### 3. An Evidentiary Hearing Would Serve the Public Interest Third, and finally, holding an evidentiaryhearing would be in the public interest. Ifthe Department's tentative decision to revoke VIH Cougar's air taxi authority becomes final, VIH Cougar will be required to cease its multi-faceted operations, including air carriage services for off-shore oil platforms inthe GulfofMexico and Alaska, as well as the important firefighting work onbehalfofthe U.S. Forest Servicein the Western United States, particularly as the upcoming summerfire season approaches. Accordingly, not only would the cessation ofVIH Cougar's operations harm the public interest by impacting these important and sensitive business lines, not to mentionthe businesses ofdozens ofotherclients, but it would result in a significant loss ofVIH Cougarjobs in already difficult economic times, thereby further harming the public interest. Issuing a decision solely onthe basis ofa paper record, where the decision turns primarily, ifnot exclusively, onMr. Steeper's credibility regarding key issues offact, and depriving Mr. Steeper (and others) ofany opportunity to testify before an ALJ, materially prejudices VIH Cougar's right to a fair determination ofits citizenship status, is contrary to the public interest, lacks transparency, and casts a cloud overthese proceedings. 14 DSMDB-3040954v2

### III. CONCLUSION For the foregoing reasons, the Department should grant VIH Cougar's motion for an oral evidentiary hearing before an Administrative Law Judge priorto issuing any final order in this matter. Given the irreparable nature ofthe harm that would result ifthe Department declines to afford VIH Cougar a hearing before issuing a final order, VIH Cougarrespectfully requests that the Department advise by March 30, 2012, whether it will grant VIH Cougar a hearing in connection with these proceedings. Dated: March 20, 2012 By:

15 

# ;v---
David

.Nadler David

. Yang AndrewE. Smith DICKSTEIN SHAPIRO 

### LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com yangd@dicksteinshapiro.com smitha@dicksteinshapiro.com Counsel to VIH Cougar Helicopters, Inc.

DSMDB-3040954v2CERTIFICATE OF SERVICE I certify that I have on this 20th day ofMarch 2012 served the foregoing motion ofVIH Cougar Helicopters, Inc. upon the persons listed below:

Susan L. Kurland Office ofthe Assistant Secretary for Aviation and International Affairs U.S. Department ofTransportation 1200 NewJersey Avenue, SE Room W96-495 Washington, DC 20590 Lauralyn Remo Office ofthe Assistant Secretary for Aviation and International Affairs U.S. Department ofTransportation 1200NewJersey Avenue, SE Room W96-495 Washington, DC 20590 Peter Lynch, AGC-300 Asst. ChiefCounsel for Enforcement Federal Aviation Administration 800 Independence Ave. SW Washington, DC 20591 William J. Weber Certification Section Manager FAA AFS-900 45005 Aviation Drive Suite 131 Dulles, VA 20166 Roy Hardie Aviation Safety Inspector Federal AviationAdministration 1601 Lind Avenue SW, Suite 260 Renton, W A 98057

AndrewE. Smith

16 DSMDB-3040954v2