BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE DF THE SECRETARY 

WASHINGTON, D.C. 

In the matter of the cancellation of the 

Air Taxi authority issued to: Docket DOT-OST-2012-0022 

VIH COUGAR HELICOPTERS, INC. 

MOTION OF VIH COUGAR HELICOPTERS, INC. FOR AN 

ORAL EVIDENTIARY HEARING BEFORE AN 

ADMINISTRATIVE LAW JUDGE AND FOR EXPEDITED CONSIDERATION 

Communications with respect to t,his document should be sent to: 

David M. Nadler 

David Y. Yang 

Andrew E. 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. 

Dated: March 20, 2012 

DSMDB-3040954v2 
BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

In the matter of the cancellation of the 

Air Taxi authority issued to: Docket DOT-OST-2012-0022 

VIH COUGAR HELICOPTERS, INC. 

MOTION OF VIH COUGAR HELICOPTERS, INC. FOR AN 

ORAL EVIDENTIARY HEARING BEFORE AN 

ADMINISTRATIVE LAW JUDGE AND FOR EXPEDITED CONSIDERATION 

Pursuant to Rules 11 and 208 ofthe Rules ofPractice (14 C.F.R. §§ 302.11, 302.208) of 

the Department of Transportation ("Department"), VIH Cougar Helicopters, Inc. ("VIH 

Cougar"), by and through the undersigned counsel, respectfully submits this motion requesting 

that the Department hold an oral evidentiary hearing before an Administrative Law Judge 

("ALJ") prior to issuing any final order regarding VIH Cougar's status as U.S. Citizen under 

49 U.S.C. § 40102(a)(15), or taking any other action regarding VIH Cougar's existing exemption 

authority as an air taxi operator under 49 U.S.C. § 40109(£) and 14 C.F.R. Part 298. 

Given the irreparable nature of the harm that VIH Cougar submits would result if the 

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 of the citizenship 

status ofVIH Cougar, a U.S. air carrier operated and controlled by U.S. citizens. See Order to 

DSMDB-3040954v2 
Show Cause, Docket No. DOT-OST-2012-0022 at 1 (Mar. 12, 2012) ("Order to Show Cause"). 

What has transpired since then is recounted below. 

A. THE DEPARTMENT'S INFORMATION REQUESTS AND VIH 

COUGAR'S RESPONSES 

During the course of its years-long investigation, the Department has issued a series of 

informational requests 1 regarding VIH Cougar's air service operations within the 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 by voluminous supporting documents, multiple declarations from management, 

and a host of other information requested by the Department relating to VIH Cougar's and those 

companies' relationships, operations, employees management structure, business structure, 

contracts, customers, and finances. 2 Throughout this extended process, VIH Cougar has been 

fully transparent and responsive to the Department's review of its 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 Order to Show Cause, which 

requests a response from VIH Cougar as to why the Department should not make final its 

tentative determination that, despite the sworn testimony of senior management, bona fide copies 

of business documents, including fully executed contracts reflective of arms length negotiations 

and terms and conditions standard in the commercial aviation marketplace, and no affirmative 

1 See 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-3040954v2 
evidence for refuting any of these points, VIH Cougar is allegedly under the de facto control of 

Mr. Kenneth Norie, a Canadian citizen. See Order to 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 of 49 U.S.C. § 40102(a)(15), the 

Department has subjectively determined that under the "totality of the circumstances," the 

company is somehow under the "actual control" of Mr. Norie, a Canadian citizen and ineligible 

for exemption authority as an air taxi operator under 14 CFR Part 298. !d. at 3-8. The 

Department's tentative conclusion in this regard is based principally, if not exclusively, on a 

credibility determination of Mr. Steeper's prior written testimony submitted in connection with 

these proceedings. Indeed, the Department had previously implied, but has now expressly and 

affirmatively stated, that it finds the "credibility of VIH Cougar" in this matter to be 

"diminish[ ed]," even though the basis for that position 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 

For example, Mr. Steeper has testified in a sworn declaration that VIH Cougar's 

contractual agreements (complete and executed copies of which have been provided to the 

Department) had been 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, similar to 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 of aircraft (a 

standard practice in the U.S. commercial aviation market); (2) the separate provision of certain 

3 

DSMDB-3040954v2 
flight and crew personnel; (3) the rental ofhanger space, facilities, and inventory; and (4) the 

provision of certain administrative support and bookkeeping services. 

Not only has the Department, in prior cases, approved of such inter-company 

arrangements under circumstances almost identical to those here (see e.g., DHL Airways, Order 

2004-5-10, Docket No. OST-2002-13089, 2004 DOT Av. LEXIS 404 (May 13, 2004); see also, 

DHL Airways, Inc. (ASTAR), ALJ Recommended Decision, Docket No. 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 of undue foreign control." Oct. 6, 

2011 DOT Ltr. at 4-5. Nevertheless, the Department has summarily rejected Mr. Steeper's 

sworn declaration testimony that the agreements at issue are arms' length transactions, and 

instead arbitrarily concluded that 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 

DECLARATION AS TO HIS ROLE AS OUTSIDE COUNSEL TO THE 

VIHGROUP 

Likewise, the Department has 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 of companies. Again, however, Mr. Steeper has provided sworn testimony in 

his declaration that he maintains a general law practice in which, along with his representation of 

4 

DSMDB-3040954v2 
the VIH Group, he represents a number of independent clients that have no relationship or 

connection to the VIH Group, and that h~ is fully capable of separating his duties as the president 

of VIH Cougar and as counsel to the VIH Group. Indeed, the Department has explicitly found 

such dual capacities acceptable and not tantamount to evidence of improper foreign control 

(see DHL Airways, 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 of VIH Cougar by VIH 

Group, even though the Department has provided no basis for doubting Mr. Steeper's sworn 

written testimony on the nature and scope of his 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 of the circumstances" 

analysis a number of unintentional, scrivener's "discrepancies" in a handful of the more than two 

dozen state corporate filings that VIH Cougar has 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. Steeper has ever been an officer of the 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 that Mr. Steeper was an officer of Cougar 

Helicopters. Although the Department emphasizes and relies on these, and only these, three 

filings as a basis for "diminish[ing] the credibility of VIH Cougar," the Department ignores VIH 

Cougar's explanation that those statements were inadvertent errors, all of which have since been 

corrected, and that Mr. Norie has never in fact been an officer ofVIH Cougar nor has Mr. 

Steeper ever in fact been an officer of Cougar Helicopters. 

5 

DSMDB-3040954v2 
More importantly, however, the Department fails to mention that none of the other two 

dozen VIH Cougar filings that have been filed over nearly the past ten years (nor any of the 

thousands of pages of other documents that have been produced to date in connection with these 

proceedings) has had any similar issues or identified Mr. Norie as an officer ofVIH Cougar. 

The Department's willingness to make credibility determinations and to focus only on a 

handful of sporadic and inadvertent mistakes, while ignoring the overwhelming majority of VIH 

Cougar's corporate reports have been correctly filed, coupled with the Department's leap to 

conclusions about VIH Cougar's credibility, raises troubling concerns about the propriety of 

these proceedings. They also demonstrate why an oral evidentiary hearing before a neutral ALJ 

(with no prior connection to the Department's investigation) is necessary to avoid prejudice and 

irreparable harm to VIH Cougar from the issuance of an 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 COUGAR AN EVIDENTIARY HEARING BEFORE TERMINATING 

ITS AIR TAXI EXEMPTION AUTHORITY 

The U.S. Constitution requires that the Department provide VIH Cougar with notice and 

an evidentiary hearing before issuing any final order in this matter revoking VIH Cougar's air 

taxi exemption authority, otherwise VIH Cougar will be deprived of property, without due 

process oflaw. See U.S. Cont. amend. V. "The fundamental requirement of due 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 such procedural protections as the particular situation demands." Id (citations 

6 

DSMDB-3040954v2 
omitted). "Hence, the form of notice and hearing required in a given circumstance requires a 

balancing of the competing public and private interests involved." Id (citations omitted). The 

U.S. Supreme Court has long held that whether a given process is sufficient to comply with 

constitutional requirements depends on consideration of three factors: (1) the nature of the 

private interest that will be affected by the official action, (2) the risk of erroneous 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 of the private interest that will be affected by the Department's proposed 

action is substantial, as the termination ofVIH Cougar's air taxi exemption authority will 

essentially amount to a "corporate death penalty" for the company by putting VIH Cougar out of 

business. Second, there is a substantial risk for error in taking such an action because the 

decision would hinge on the credibility of Mr. Steeper, and neither he 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 Cougar undisputedly 

has conducted safe air carriage operations and, therefore, there are no issues impacting the 

health, safety or welfare of the traveling public or any other segment of the public. In addition, 

the burden on providing VIH Cougar a hearing is also low, as the time and resources needed to 

conduct a hearing would be reasonable and proportional to the limited issues raised by the 

Department's Order to Show Cause. Indeed, as discussed below, evidentiary hearings are 

common and even required in many similar contexts, such as where the Department seeks to 

revoke a certificate of public convenience and necessity that also affects a carrier's ability to 

7 

DSMDB-3040954v2 
operate in the United States. See 49 U.S.C. § 41110(a)(2), (e)(2). Accordingly, weighing all 

three of the foregoing Mathews factors, VIH Cougar's procedural rights to due process would be 

violated if the Department were to rescind its air taxi exemption authority under the 

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 COUGAR IS ENTITLED TO AN EVIDENTIARY 

HEARING BEFORE THE DEPARTMENT TERMINATES ITS AIR TAXI 

EXEMPTION AUTHORITY 

1. LegalStandards 

Under the Federal Aviation Act, 49 U.S.C. § 40101 et seq., in order for VIH Cougar to 

conduct air carrier services in the United States it must either: (I) hold a certificate of public 

convenience and necessity ("Certificate"} issued pursuant to 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 Cougar to be a "citizen of the United States" as defined under 49 U.S.C. 

§ 40102(a)(15).3 

If the Department grants a Certificate, it may initiate a continuing fitness review pursuant 

to 49 U.S.C. § 41110(e) under which the Department assesses changes that may affect an air 

carrier's continuing fitness, including ownership and control. See 49 U.S.C. § 41110(e). If after 

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) "An individual who is a 

citizen of the United States;" (2) "A partnership each of whose partners is an individual who is a 

citizen of the United States; or" (3) "A corporation or association organized under the laws of the 

United States or a state, the District of Columbia, or a territory or possession of the United 

States, of which the president and at least two-thirds of the board of directors and other 

managing officers are citizens of the United States, which is under the actual control of citizens 

of the United States, and in which at least 75 percent of the voting interest is owned or controlled 

by persons that are citizens of the United States." 

8 

DSMDB-3040954v2 
a 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 or recommended decision, or any combination of 

these." 14 C.F.R. 302.208. Petitioners must only demonstrate that "one or more of the criteria 

set forth in§ 302.207 are applicable to the issues for which an oral presentation or judge's 

decision is requested." !d. Specifically, 14 C.F.R. § 302.207 indicates that a hearing before an 

ALJ is warranted ifthe: (1) use of written procedures will prejudice a party; (2) material issues 

of decisional fact cannot adequately be resolved without oral evidentiary hearing procedures; or 

(3) an oral evidentiary hearing procedure is otherwise required by the public interest. See 14 

C.F.R. § 302.207(a)(l)-(3). As shown below, where, as here, not one but all three of these 

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 avoid the appearance of 

any impropriety or due process concerns. 

2. The Department's Proposed Cancelation of VIH Cougar's Air Taxi 

Exemption Authority Is Equivalent to a Revocation of a Certificate 

Issued under 49 U.S.C. §§ 41101 And 41102 and, Thus, Notice and an 

Evidentiary Hearing Before an ALJ Are Required 

The Department's tentative decision to cancel VIH Cougar's air taxi exemption authority 

pursuant to 49 U.S.C. § 40109(f) and 14 C.F.R. Part 298 is tantamount to the revocation of a 

Certificate under 49 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 air taxi in the United States. 

Accordingly, because a hearing before an ALJ would be required before a Certificate could be 

revoked, the Department must also proviae VIH Cougar with the same due process before it can 

9 

DSMDB-3040954v2 
issue 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 Cougar has 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 itself took 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 an U.S. air carrier, over 16 years after it has 

been in operation and four years after the Department began this investigation, amounts to a 

deprivation of a constitutionally-protected property interest (the loss of the operation exemption, 

the ability to operate under the exemption, and the ability to acquire a Certificate under the 

regulations) without procedural due process. 

The Federal Aviation Act ("FAA"), 49 U.S.C. § 41110 establishes the necessary 

procedural due process requirements when the Department revokes or suspends a company's 

ability to operate pursuant to 49 U.S.C. §§ 41101 and 41102. In these circumstances, it would be 

a denial of due process, arbitrary and capricious, and contrary to the intent of Section 41110 not 

to require a hearing. If the cancelation of a Certificate is serious enough of a property 

deprivation to require an evidentiary hearing, then so is the cancelation of an air taxi exemption: 

the net effect of both actions is exactly the same- the revocation of the carrier's ability to 

operate in the United States. Since the net effect of the Department's findings would be the 

identical under either circumstance and the FAA clearly contemplates an evidentiary hearing in 

connection with such property 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-3040954v2 
Indeed, the Department has itself acknowledged in a document, entitled "How to Become 

a Certificated Air Carrier," that the denial of mere applications filed prior to 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 on the papers. Specifically, the 

Department has recognized: 

If an application raises substantive questions of fact, is controversial, or presents 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 Law Judge. 

Once the application is assigned, the Judge will set a procedural schedule for exhibits, 

hearings, and briefs. After these procedures have been completed, the Judge will review 

the information submitted and the arguments on brief, and issue a recommended decision 

on the applicant's fitness to provide the air transportation it proposes. 

How to Become a Certificated Air Carrier at 7, fn.9 (May 2005). 

Here the record raises significant questions of substantive 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 connected with the Department's prior review of this matter), 

after the ALJ has heard Mr. Steeper's testimony on the witness stand and allowed him to 

confront any evidence that the Department claims refutes his written testimony. 

There is also little doubt that the above-captioned matter is highly controversial and 

presents complex issues, as the Department's investigation itself has takenfour years just to 

reach a tentative decision point, involved numerous informational requests from the Department, 

and entailed five detailed and substantive submissions 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. If a 

hearing under such circumstances is necessary to 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-3040954v2 
Department 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 COUGAR WITH A 

HEARING BEFORE IT REVOKES ITS AIR TAXI EXEMPTION 

AUTHORITY 

Even if an 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 allow for "any person" to 

petition for an oral evidentiary hearing, see 14 C.P.R. 302.208, by demonstrating that: (1) use of 

written procedures will prejudice a party; (2) that material issues of decisional fact cannot 

adequately be resolved without oral evidentiary hearing procedures; or (3) the assignment of an 

application for oral evidentiary hearing is required by the public interest. See 14 C.P.R. 

§ 302.207(a)(l )-(3).4 All three of these factors are present here. Thus, even if a hearing were not 

mandatory, which it is, it would be an abuse of agency discretion not to afford VIH Cougar a 

hearing under its own rules of procedure. 5 

1. Written Procedures Would Prejudice VIH Cougar Because the Show 

Cause Order Turns on Credibility Determinations 

First, the use of written procedures will significantly prejudice VIH Cougar because the 

Department's tentative decision in its Order to Show Cause turns primarily, if not solely, on the 

credibility of Mr. Steeper, who thus far has not been afforded any opportunity to testify live or to 

4 VIH Cougar respectfully requests that the Department treat VIH Cougar's motion as a petition 

for such a hearing. 

5 Pursuant to 14 C.P.R. § 302.208(a)(3), we anticipate that the time required for an oral 

evidentiary presentation would be 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 under the Department's procedural rules can determine the credibility of Mr. 

Steeper's claims, and whether under the "totality of the circumstances" VIH Cougar is a U.S. 

citizen. 

12 

DSMDB-3040954v2 
confront any of the 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 best position to make such determinations. 

See e.g., Castro v. Security Assur. 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 claimant testifying). 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 best position to weigh 

witness "tones of voice" and "hesitations of speech" 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 paper record alone often "miss[es] [the evidence's] heart and soul"- "like a 

dehydrated peach; it has neither the substance nor the flavor of the fruit before it was dried." !d. 

(citations omitted). Since demeanor-based credibility determinations of Mr. Steeper can be 

observed and determined only in person, and cannot be adequately resolved just on the papers, a 

neutral ALJ should be assigned the task of weighing Mr. Steeper's testimony and credibility in 

an oral evidentiary hearing with the opportunity for cross-examination and confrontation of any 

allegedly adverse evidence. 

2. Key Material Issues of Decisional Fact Turn on Credibility 

Determinations 

Second, key material issues of decisional 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 other technical support services (which 

arrangements the Department previously has found acceptable in similar cases) were negotiated 

and executed between the parties at arm's length; (2) whether such agreements are non-exclusive 

13 

DSMDB-3040954v2 
and non-binding; (3) whether Mr. Steeper's role as counsel to VIH Group, among numerous 

other independent clients, clouds or unduly influences his responsibilities over the day-to-day 

control ofVIH Cougar; and ( 4) whether the alleged "discrepancies" in the information submitted 

by VIH Cougar are due to a handful of isolated clerical errors. Order to Show Cause at 3-8. 

None of these key issues of fact can adequately be determined by the Department merely by 

examining the existing paper record, which is the only thing that the Department has done thus 

far, because a proper determination of these, and other, critical issues can be resolved only by 

observing and evaluating witness credibility, demeanor, and temperament given that the 

Department has elected not to believe Mr. Steeper's written testimony on these points. 

3. An Evidentiary Hearing Would Serve the Public Interest 

Third, and finally, holding an evidentiary hearing would be in the public interest. If the 

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 in the Gulf of Mexico and Alaska, as well as the important fire fighting 

work on behalf of the U.S. Forest Service in the Western United States, particularly as the 

upcoming summer fire season approaches. Accordingly, not only would the cessation of VIH 

Cougar's operations harm the public interest by impacting these important and sensitive business 

lines, not to mention the businesses of dozens of other clients, but it would result in a significant 

loss ofVIH Cougar jobs in already difficult economic times, thereby further harming the public 

interest. Issuing a decision solely on the basis of a paper record, where the decision turns 

primarily, if not exclusively, on Mr. Steeper's credibility regarding key issues of fact, and 

depriving Mr. Steeper (and others) of any opportunity to testify before an ALJ, materially 

prejudices VIH Cougar's right to a fair determination of its citizenship status, is contrary to the 

public interest, lacks transparency, and casts a cloud over these 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 prior to issuing any final order in this 

matter. Given the irreparable nature of the harm that would result if the Department declines to 

afford VIH Cougar a hearing before issuing a final order, VIH Cougar respectfully 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 

Andrew E. 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-3040954v2 
CERTIFICATE OF SERVICE 

I certify that I have on this 20th day of March 2012 served the foregoing motion of VIH Cougar 

Helicopters, Inc. upon the persons listed below: 

Susan L. Kurland 

Office ofthe Assistant Secretary for 

Aviation and International Affairs 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

Room W96-495 

Washington, DC 20590 

Lauralyn Remo 

Office of the Assistant Secretary for 

Aviation and International Affairs 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

Room W96-495 

Washington, DC 20590 

Peter Lynch, AGC-300 

Asst. Chief Counsel 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 Aviation Administration 

1601 Lind Avenue SW, Suite 260 

Renton, W A 98057 

Andrew E. Smith 

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DSMDB-3040954v2