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### BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OFTHE SECRETARY W**AS~GTO~,** 

### D.C.

In the matter 

### ofthe cancellation ofthe Air Taxi authority issued to: 

### VIH COUGARHELICOPTERS, INC. Docket

### DOT-OST-2012-0022 141002



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

## FORAN ORAL EVIDENTIARY HEARING BEFORE AN ADMINISTRATIVE 

### LAW

## JUDGE AND FOREXPEDITED CONSIDERATION-AND

### VIH COUGAR'S MOTION FORTHE PRODUCTION OF ALL COMMUNICATIONS**ANDDOCUMENTSEXCHANGEDBE~ENTHEDEPARTMENT** 

## AND ALL TIDRD PARTIES IN CONNECTION WITH TillS MATTER Communications with respect to this document should be sentto:

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

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BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASillNGTON, D.C.

In the matter ofthe cancellation ofthe Air Taxi authority issued to: VIH COUGARHELICOPTERS, 

### 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 LAWJUDGE AND FOREXPEDITED CONSIDERATION-ANDVIH COUGAR'S MOTIONFORTHE PRODUCTION OF ALL COMMUNICATIONS ANDDOCUMENTSEXCHANGEDBETWEENTHEDEPARTMENT AND ALL TIDRD PARTIES IN CONNECTION WITH TIDS MATTER Pursuant to 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 supplemental brief 

### in support ofits March 20, 2012 Motion for an Oral Evidentiary Hearing Before an Administrative LawJudge and for Expedited Consideration. 

### I. BACKGROUND OnMarch 20,2012, VIH Cougar submitted a motionrequesting that the Department hold
an oral evidentiaryhearing before an ALJpriorto issuing any fmal orderregarding VIH Cougar's status as a U.S. citizen under 49 U.S.C. §40102(a)(15), Laterthat day, VIH Cougar discovered 

### in the docket for these proceedings thatthe Department hadrecently responded to a March 2, 2012letterto the Departmentby 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 ofJonathan Blankto Susan Kurland (March 2, 2012) (''Blank Letter"). Mr. Blank's letter was addressed to Susan Kurland, the Assistant Secretary for Aviarion and International Affairs and the designated DOT decision-maker in these proceedings. Secretary Kurland also issued Ihe Department's March 12, 2012 Orderto Show Cause, which tentatively found thatVIH Cougaris not under the actual control ofU.S. citizens
even though there is no dispute that itmeets the citizenship requirements under the Federal Aviation Act. VIH Cougar notes that inhis letter, Mr. Blank asserts that PHI has "long maintained" withthe DepartmentthatVIH 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 campaignto malign VIH Cougar's reputation_ BlankLetter 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 ofthis matternearly four years ago. 

### Mr. Blank asserts 

### inhis letter to Secretary Kurland thathe is writing on behalfofPHI and adds that the Alaska Air Carriers Association and Maritime Helicopters ("AACAMH") also
concurs withthe positions taken inhis letter. See Blank Letter at 1. Although Yfr. Blank notes that he has attached copies ofthe AACAMH letters, those materials were not included inthe docket. 

### See id 

### :Mr. Blank funher asserts that PHI has "lpng maintained" that although VIH Cougar "theoreticallycomplies with the numerical ownership requirements ofthe statute, it is not under the actual control ofcitizens ofthe 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 ofits illegal relationship with the VIH Group at

1PHI claims to be '"one ofthe world's leading helicopter services companies," providing "offshore helicopter support to companies operating in the GulfofMexico." 

### See PHI, Inc. Public Website, 

### available athttp://www.phlhelico-corn! (last visited Mar. 21, 2012)- 2 DSMDB-30<12345v503/23/2012 14:03 FAX 202 887 0689 D S M 

### & 0 141005

the expense ofthese U.S. companies." ld. None ofthe supposed evidence underlying any of these charges has everbeenprovided by the Departmentto VIH Cougar. Finally, Mr. Blank requests that "the Department bring transparency to any further proceedings 

### in this matter."2 BlankLetter at 2. 

## n. ARGUMENT A. AN EVIDENTIARY HEARING BEFORE AN ALJIS NECESSARY TO COMPLY WITH VIH COUGAR'S DUE PROCESS RIGHTS TOREVIEW 

### AND CONFRONT 

### ALL ALLEGATIONS AND EVIDENCE AGAINST IT AND ENSURE OPENNESS AND TRANSPARENCY IN THESE PROCEEDINGS. VIH Cougar will not dignify a responseto the bare allegations 

### in Mr. Blank's letter, as they are by a competitor with an obvious financial interest 

### inthe outcome ofthese proceedings. However, PHI's letter does make a valid point inrequesting thatthe Department "bring transparency to 

### any further proceedings inthis matter." BlankLetter at 2. Onthis 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 ofsupposed "evidence"that has been submitted to the Department over the years are false. Accordingly, VIH Cougarrespectfully submits once more that an evidentiary hearing undertherules outlined 

### in 14 C.F.R. Part 302 before an impartial ALJ is the only way to adequately ensure thatthese proceedings are conducted fairly and 

### v.rith as much transparency as possible, and that 

### all**parti~s** 

### will/lave theall of the evidence relevant inthis 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 beentaken up to thatpoint in the investigation. In a letter dated March 19, 2012, Secretary Kurland thanked Mr. Blankfor his March 2, 2012letter, and informed him that the Department had taken actionby issujng the Orderto ShowCause. It was not until March 20, 2012, 

### over two weeks after Mr. Blank sent his letter, thatit was fmally made available to 

### VIIi Cougar onthe regulations.gov website in the public docket for this matter. 3 DSMDB-3042345vS03/23/2012 14:03 FAX 202 887 0689 D S M 

### & 0 

### !41 006

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 ofthe 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 beenproviding the Department for years, VIH Cougar obviously cannot adequately refute the allegations and demonstrate to the Department whythey are incorrect. It is elementary in any fair system ofadjudication that the accused is entitled as a matter ofdue process to know and confront all ofthe evidence against it. Given the serious nature ofthe allegations that have been made by competitors, andthe fact that the Department's tentative decision amounts to a corporate deathpenalty for the company, VIH Cougar's due process rights demand no less thanthe opportunity to review allof 

### tlte allegations andpurportedevidence thathave 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 paperrecord. 

### B. IN THE INTERESTS OF FAIRNESS, OPENNESS AND TRANSPARENCY, THE DEPARTMENT 

### SHOULD IMMEDIATELY PRODUCE ALL COMMUNICATIONS AND 

### DOCUMENTS EXCHANGED BETWEENTHEDEPARTMENT AND THIRD PARTIES IN CONNECTIONWITHTIDS 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 Cougarrequests that all communications and other documents that have beenexchanged between the Department and any third parties in connection with these proceedings immediatelybe produced. VIH 4 DSMDB-3042345v503/23/2012 14:03 FAX 202 887 0689 D S M & 0 [4]007

Cougarfurther requests that the Department allow itto file supplemental objections based on 

### any such infonnationwithin ten days ofthe objections to the Department's ShowCause Order that VIH Cougar will be filing on April2, 2012. 

### III. CONCLUSION Forthe foregoing reasons,

# the Department should grant 

### VII-I Cougar's Motion for an Evidentiary Hearing before anAdministrative LawJudge prior to issuing any final order in this matter. As set forth in our opening brief, VIH Cougarrespectfully requests that the Department provide a decision on VIH Cougar's request for a hearing by March 30, 2012. Finally, VIH Cougar requests thatthe Departmentimmediately produce any and all correspondence, submissions, and other documents that have been exchanged between the Department and any third party 

### in connection withthis matter and afford VIH Cougar an opportunjty to file supplemental objections to the Show Cause Order based onthat 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 OSMDB-3042345v503/23/2012 14:04 FAX
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### liloos**CE~TIF1CATE** 

### OF SERVICE I certify that I have on this 23rd day ofMarch 2012 served the foregoing motion ofVIH Cougar Helicopters, Inc. upon the persons listed below:
Susan

### L. Kurland Office ofthe Assistant Secretaryfor 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 1200 New Jersey Avenue, SE Room W96-495 Washington, DC 20590

6 Peter Lynch, AGC-300 Asst. ChiefCoUllSel 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**