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BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

W AS~GTO~, D.C. 

In the matter ofthe cancellation ofthe 

Air Taxi authority issued to: 

VIH COUGAR HELICOPTERS, INC. 

Docket DOT -OST -2012-0022 

141002 

SUPPLEMENTAL BRIEF IN SUPPORT OF VIH COUGAR HELICOPTERS, INC.'S 

MOTION FOR AN ORAL EVIDENTIARY HEARING BEFORE AN 

ADMINISTRATIVE LAW JUDGE AND FOR EXPEDITED CONSIDERATION 

-ANDVIH COUGAR'S MOTION FOR THE PRODUCTION OF ALL COMMUNICATIONS 

ANDDOCUMENTSEXCHANGEDBE~ENTHEDEPARTMENT 

AND ALL TIDRD PARTIES IN CONNECTION WITH TillS MATTER 

Communications with respect to this 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 23, 2012 

l)SMD8-30423<15v5 
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BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASillNGTON, D.C. 

In the matter of the cancellation of the 

Air Taxi authority issued to: 

VIH COUGAR HELICOPTERS, INC. 

Docket DOT -OST -2012-0022 

141003 

SUPPLEMENTAL BRIEF IN SUPPORT OF VIH COUGAR HELICOPTERS, INC.'S 

MOTION FOR AN ORAL EVIDENTIARY HEARING BEFORE AN 

ADMINISTRATIVE LAW JUDGE AND FOR EXPEDITED CONSIDERATION 

-ANDVIH COUGAR'S MOTION FOR THE PRODUCTION OF ALL COMMUNICATIONS 

ANDDOCUMENTSEXCHANGEDBETWEENTHEDEPARTMENT 

AND ALL TIDRD PARTIES IN CONNECTION WITH TIDS MATTER 

Pursuant to Rules 11 and 208 of the Rules of Practice (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 supplemental brief 

in support of its March 20, 2012 Motion for an Oral Evidentiary Hearing Before an 

Administrative Law Judge and for Expedited Consideration. 

I. BACKGROUND 

On March 20,2012, VIH Cougar submitted a motion requesting that the Department hold 

an oral evidentiary hearing before an ALJ prior to issuing any fmal order regarding VIH 

Cougar's status as a U.S. citizen under 49 U.S.C. § 40102(a)(15), Later that day, VIH Cougar 

discovered in the docket for these proceedings that the Department had recently responded to a 

March 2, 2012letter to the Department by Mr. Jonathan Blank and the Department's response 

thereto, dated March 19, 2012. Mr. Blank is counsel for Petroleum Helicopters, Inc. ("PHI"), a 

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competitor ofVIH Cougar. 1 See genel"ally, Letter of Jonathan Blank to Susan Kurland (March 2, 

2012) (''Blank Letter"). Mr. Blank's letter was addressed to Susan Kurland, the Assistant 

Secretary for A vi arion and International Affairs and the designated DOT decision-maker in these 

proceedings. Secretary Kurland also issued Ihe Department's March 12, 2012 Order to Show 

Cause, which tentatively found that VIH Cougar is not under the actual control of U.S. citizens 

even though there is no dispute that it meets the citizenship requirements under the Federal 

Aviation Act. VIH Cougar notes that in his letter, Mr. Blank asserts that PHI has "long 

maintained" with the Department that VIH Cougar is under foreign control and has been \1/Titing 

to the Department for years through its counsel in a "long" standing, on-going and coordinated 

campaign to malign VIH Cougar's reputation_ Blank Letter at L Accordingly, it appears that 

PHI has been making allegations and providing purported evidence against VIH Cougar ever 

since the Department began its review of this matter nearly four years ago. 

Mr. Blank asserts in his letter to Secretary Kurland that he is writing on behalf of PHI and 

adds that the Alaska Air Carriers Association and Maritime Helicopters ("AACAMH") also 

concurs with the positions taken in his letter. See Blank Letter at 1. Although Yfr. Blank notes 

that he has attached copies of the AACAMH letters, those materials were not included in the 

docket. See id :Mr. Blank funher asserts that PHI has "lpng maintained" that although VIH 

Cougar "theoretically complies with the numerical ownership requirements of the statute, it is 

not under the actual control of citizens of the United States." Blank Letter at 1 (emphasis 

added). Mr- Blank accuses that ''VIH Cougar has been competing unfairly with PHI and other 

U.S. citizen operators'' and been the "beneficiary of its illegal relationship with the VIH Group at 

1 PHI claims to be '"one of the world's leading helicopter services companies," providing 

"offshore helicopter support to companies operating in the Gulf of Mexico." See PHI, Inc. 

Public Website, available at http://www.phlhelico-corn! (last visited Mar. 21, 2012)-

2 

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the expense of these U.S. companies." ld. None of the supposed evidence underlying any of 

these charges has ever been provided by the Department to VIH Cougar. Finally, Mr. Blank 

requests that "the Department bring transparency to any further proceedings in this matter."2 

Blank Letter at 2. 

n. ARGUMENT 

A. AN EVIDENTIARY HEARING BEFORE AN ALJ IS NECESSARY TO 

COMPLY WITH VIH COUGAR'S DUE PROCESS RIGHTS TO REVIEW 

AND CONFRONT ALL ALLEGATIONS AND EVIDENCE AGAINST IT 

AND ENSURE OPENNESS AND TRANSPARENCY IN THESE 

PROCEEDINGS. 

VIH Cougar will not dignify a response to the bare allegations in Mr. Blank's letter, as 

they are by a competitor with an obvious financial interest in the outcome of these proceedings. 

However, PHI's letter does make a valid point in requesting that the Department "bring 

transparency to any further proceedings in this matter." Blank Letter at 2. On this one point, 

VIH Cougar could not agree more. VIH Cougar is entitled to review and confront all the 

allegations by its competitors and demonstrate that all of supposed "evidence" that has been 

submitted to the Department over the years are false. Accordingly, VIH Cougar respectfully 

submits once more that an evidentiary hearing under the rules outlined in 14 C.F .R. Part 302 

before an impartial ALJ is the only way to adequately ensure that these proceedings are 

conducted fairly and v.rith as much transparency as possible, and that all parti~s will/lave the all 

of the evidence relevant in this matter. 

2 Just ten days after PID's letter, Secretary Kurland issued the Order to Show Cause to VIH 

Cougar, even though no such action had been taken up to that point in the investigation. In a 

letter dated March 19, 2012, Secretary Kurland thanked Mr. Blank for his March 2, 2012letter, 

and informed him that the Department had taken action by issujng the Order to Show Cause. It 

was not until March 20, 2012, over two weeks after Mr. Blank sent his letter, that it was fmally 

made available to VIIi Cougar on the regulations.gov website in the public docket for this 

matter. 

3 

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Only pursuant to the formal hearing process will Vlli Cougar be allowed to exercise its 

fundamental right to discover and review its competitors' claims, and make sure that all of the 

relevant facts are on the table for proper consideration by the fact-finder in any determination of 

VIH Cougar's citizenship status. See 14 C.F.R. § 302.17(a). Without knowing the evidence that 

third parties have been providing the Department for years, VIH Cougar obviously cannot 

adequately refute the allegations and demonstrate to the Department why they are incorrect. It is 

elementary in any fair system of adjudication that the accused is entitled as a matter of due 

process to know and confront all of the evidence against it. 

Given the serious nature of the allegations that have been made by competitors, and the 

fact that the Department's tentative decision amounts to a corporate death penalty for the 

company, VIH Cougar's due process rights demand no less than the opportunity to review all of 

tlte allegations and purported evidence that have been asserted against it for the past four years, 

take discovery and depositions, examine adverse witnesses, and put on its O"\Nll witnesses before 

a neutral arbiter_ These procedural safeguards are all the more necessary here since the 

Department's tentative decision admittedly rests on credibility determinations that cannot be 

weighed and determined on only a paper record. 

B. IN THE INTERESTS OF FAIRNESS, OPENNESS AND 

TRANSPARENCY, THE DEPARTMENT SHOULD IMMEDIATELY 

PRODUCE ALL COMMUNICATIONS AND DOCUMENTS 

EXCHANGED BETWEEN THE DEPARTMENT AND THIRD PARTIES 

IN CONNECTION WITH TIDS MATTER. 

Because it appears that PHI and other competitors instigated the Department's review of 

this matter and have been making allegations and submitting alleged evidence to the Department 

ofVIH Cougar's non-compliance with citizenship requirements for years, VIH Cougar requests 

that all communications and other documents that have been exchanged between the Department 

and any third parties in connection with these proceedings immediately be produced. VIH 

4 

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Cougar further requests that the Department allow it to file supplemental objections based on any 

such infonnation within ten days of the objections to the Department's Show Cause Order that 

VIH Cougar will be filing on April2, 2012. 

III. CONCLUSION 

For the foregoing reasons, the Department should grant VII-I Cougar's Motion for an 

Evidentiary Hearing before an Administrative Law Judge prior to issuing any final order in this 

matter. As set forth in our opening brief, VIH Cougar respectfully requests that the Department 

provide a decision on VIH Cougar's request for a hearing by March 30, 2012. Finally, VIH 

Cougar requests that the Department immediately produce any and all correspondence, 

submissions, and other documents that have been exchanged between the Department and any 

third party in connection with this matter and afford VIH Cougar an opportunjty to file 

supplemental objections to the Show Cause Order based on that information within ten days of 

VIH Cougar's April2, 2012 objections to the same. 

Dated: March 23,2012 Respectfully submitted 

? 

By: - DavidM. 

David Y. Y g 

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. 

5 

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03/23/2012 14:04 FAX __ 202 887 0689 D S M & 0 liloos 

CE~TIF1CATE OF SERVICE 

I certify that I have on this 23rd day of March 2012 served the foregoing motion ofVIH Cougar 

Helicopters, Inc. upon the persons listed below: 

Susan L. Kurland 

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 

Lauralyn Remo 

Office of the Assistant Secretary for 

Aviation and International Affairs 

U.S. Department ofTransportation 

1200 New Jersey Avenue, SE 

Room W96-495 

Washington, DC 20590 

6 

Peter Lynch, AGC-300 

Asst. Chief CoUllSel for Enforcement 

Federal Aviation Administration 

800 Independence Ave. SW 

Washington, DC 20591 

William J _ Weber 

Certification Section Manager 

FAAAFS-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 

DSMV8-304~45v.S