Order 2013-7-17

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 22nd day of July 2013

Third Party Complaint of

F. Bennett Cushman II

v.

British Airways Plc Docket OST 2013-0101

 

Violations of 49 U.S.C. § 41712 and

14 CFR 259.5(b)(4) Served July 22, 2013

ORDER OF DISMISSAL

On May 13, 2013, Mr. F. Bennett Cushman II (the Complainant) filed a third-party 

complaint under 14 CFR 302.401 against British Airways Plc (British Airways) alleging 

that the carrier failed to comply with the reservations-holding requirements of 14 CFR 

259.5(b)(4). The complaint also alleges a general practice on the part of British Airways

reservations agents to deny the applicability of U.S. regulations to its operations and 

urges the Department to impose sanctions on the carrier for its violations of section 

259.5(b)(4) and general denial of U.S. jurisdiction. This order finds no support for the 

assertions made in the complaint, although it does find that the carrier did commit minor 

violations of 14 CFR Part 374, which were not alleged by the complainant and can be 

dealt with by a warning. We therefore dismiss the complaint.

The Complaint

The complaint is based on Mr. Cushman’s reservations on British Airways made on 

March 30, 2013, for business class travel in September 2013.

1

 Within 24 hours Mr. 

 1 There is some confusion in the pleadings as to the itinerary of the March 30 booking. In 

the complaint the initial itinerary of Mr. Cushman is described as a journey from San Francisco to 

Paris and return to Boston; the British Airways answer refers to a San Francisco to Paris booking 

by way of London and Mr. Cushman’s reply does not dispute that this was the itinerary that was
2

Cushman tried to make two changes to the reservation; on attempting to make the second 

change, British Airways informed him that there would be $500 change fee. To avoid the 

change fee, Mr. Cushman attempted to cancel the entire trip but was told, according to 

the complaint, that the cancellation would result in the same $500 change fee. The 

carrier charged the complainant’s credit card for a total of $4,012, representing the base

fare and the $500 cancellation or change fee. There was also a separate charge of $458 

for seat assignments. These charges are, according to the complaint, in violation of

section 259.5(b)(4), which requires that a carrier hold a reservation for 24 hours without 

payment and allow cancellation of the reservation without penalty provided the

reservation is made one week or more prior to the date of travel. 

According to the complaint, the carrier initially refunded the seat assignment fee for the 

travel and for another itinerary, but not until April 17, after numerous communications 

between the carrier and the complainant, did the carrier complete processing the refund of 

the entire balance. The complainant concedes that he eventually received a full refund of 

the fare and the seat assignment and cancellation fees.

In a more general allegation, the complainant alleges that during numerous phone calls to 

a British Airways reservations number in late April 2013 “a number of BA employees 

routinely and misleadingly told Mr. Cushman that he was not protected by the U.S. DOT 

rules [including section 259.5(b)(4)] . . . because BA is a ‘foreign’ carrier and not subject 

to the U.S. DOT rules.” The complaint urges the Department to investigate these “illegal 

or unfair or deceptive practices” and impose appropriate fines and other sanctions. 

Answer of British Airways and Subsequent Pleadings

In its answer of May 28, 2013, British Airways asserts that its conduct with respect to 

Mr. Cushman’s reservations was entirely consistent with the requirements of the 

reservation-hold provision of section 259.5(b)(4) and that the complaint’s broader 

allegations of carrier deception are vague, unsubstantiated and groundless. British 

Airways points out that section 259.5(b)(4) requires a refund for reservations cancelled 

within 24 hours, which Mr. Cushman received; nothing in the rule specifically refers to 

change fees but British Airways refunded those as well.2

 According to British Airways,

the refund was processed in two stages. The refund of the seat assignment charges of 

$478 was completed on April 1; processing of a credit for the balance of the $4,470.34 

(or $4,012.34) debited to Mr. Cushman’s account was completed on April 17.

3

 The 

 

later cancelled. In a March 31, 2013, booking, Mr. Tuttle and Mr. Cushman booked flights from 

San Francisco to Paris by way of London.

2 The Office of Aviation Enforcement and Proceedings issued an industry guidance notice 

on this point on May 31, 2013, which advises carriers to disclose the option to cancel and rebook 

an itinerary, without a change fee, when a consumer wants to make an itinerary change or face 

possible future enforcement action. 3 A violation of the requirements of 14 CFR Part 374 may have occurred in processing the 

second portion of Mr. Cushman’s claim, since the merchant did not complete its processing 

within seven days of his cancellation refund request as required under Federal Reserve’s 

Regulation Z (12 CFR 226.12(e)). Mr. Cushman, however, did not allege this violation in his 
3

allegation of a general denial of the Department’s jurisdiction is not supported in the 

complaint and is an attempt, British Airways asserts, to apply a varnish of altruism to a

complaint which in fact derives exclusively from Mr. Cushman’s personal experience. 

British Airways’ answer also describes efforts by the carrier to recompense the 

complainant for any personal inconvenience with offers of frequent flyer awards and

credits toward future travel as well as cash. Mr. Cushman refused these offers according 

to British Airways. 

In a reply dated June 10, 2013, Mr. Cushman repeated the assertions contained in his 

complaint and laid emphasis on the fact that the carrier’s answer was not submitted with 

the verification referred to in section 302.4(b).4 Mr. Cushman’s reply asserts that the 

British Airways’ answer lacked sufficient specificity, contained “numerous inaccurate or 

misleading statements,” and urged again that the Department initiate a broad 

investigation of the carrier’s practices. Mr. Cushman stated that he refused a $500 credit 

as insufficient compensation for the delay and aggravation he suffered. The reply also 

refers again to an “inexplicable” bogus charge of $3,512.34 (in the complaint it was 

referred to as “a mysterious and never-ever explained” extra charge) which was applied

to Mr. Cushman’s credit card but was eventually refunded.5

 Mr. Cushman repeats his 

assertion that the fact that the carrier eventually tendered the appropriate refunds does not 

constitute compliance with section 259.4.

British Airways, in response, filed a surreply on June 19, 2013. The pleading takes issue 

with a number of arguments raised in Mr. Cushman’s reply. First, with respect to the 

verification argument, the carrier points out that the Department issued a waiver of the 

literal requirements of section 302.4(b) in March 10, 2000, limiting its application to 

initial and continuing fitness proceedings. For more than 13 years, British Airways 

points out, the Department has accepted thousands of pleadings without verification 

pursuant to this waiver and Mr. Cushman has not offered any rationale for insisting on 

 

complaint. Because of the complexity of the factual situation (i.e., based on our review of the 

record it appears there were three bookings, two changes and two cancellations within a 24-hour 

period), the isolated nature of the event and the brief duration of the carrier’s noncompliance, we 

are closing this matter with a warning to the carrier to refrain from such actions in the future.

4 Mr. Cushman’s reply was filed without obtaining the consent of opposing counsel, 

without an accompanying motion for leave to file an otherwise unauthorized document, as 

required by the Department’s rules (14 CFR 302.6), and 12 days following the pleading to which 

it responded. Nevertheless, in the interest of developing a more complete record, we have 

considered the complainant’s subsequent pleadings, including this reply, a surreply dated June 21, 

and two comments. 5 The British Airways answer makes clear that this “inexplicable” charge was the base fare 

for the March 30 reservation. The total claim was for $3,512.34 (the fare), a $500 change fee for 

the second change and a $458 seat assignment fee. The later was refunded by April 1; the other 

two charges were processed by April 17. Mr. Cushman’s reply also states that “there were also 

additional ticket fees of $7116.68 for two cancelled tickets.” It is not clear to what this charge 

relates. It was not mentioned in the complaint itself and may refer to other trips booked and 

cancelled by Messrs. Cushman and Tuttle. In any event, there is no allegation of delay in 

receiving credit for these cancelled bookings. 
4

verification in this instance. Second, as to the offer of a $500 credit mentioned in the 

reply, British Airways reaffirms that the offer was in fact for $1,000, as stated in the 

carrier’s answer, and attached copies of an e-mail exchange referring to that amount and 

Mr. Tuttle’s rejection of that offer.

6

Decision

We will dismiss the complaint. The allegations contained in Mr. Cushman’s complaint 

concerning British Airways’ general practice of denying U.S. jurisdiction are entirely 

unsupported except for the allegations in the complaint. We are aware of no similar 

complaints lodged with the Department against the carrier. With regard to Mr. 

Cushman’s personal experience in making and then cancelling a number of reservations 

on March 30, 2013, he did receive his refunds albeit a few days late which is 

understandable considering the history and complexity of the transactions in question. 

We have reviewed the Department’s records of consumer complaints on this issue and 

over the previous three years and again found no pattern indicating violations of Part 259 

or Part 374 by British Airways.

 6 Four pleadings were filed subsequent to the June 19 answer. On June 21, Mr. Cushman 

filed a surreply to the British Airways surreply of June 19 essentially reiterating that a broadbased investigation of the air carrier was warranted on the basis of Mr. Tuttle’s and Mr. 

Cushman’s telephone conversations with British Airways reservations agents in which the agents 

allegedly denied the carrier was subject to U.S. laws. In addition, the pleading states that the 

initial offer to Mr. Cushman of a $500 credit to settle the matter came from another office within 

the carrier, but the pleading does not deny receiving and rejecting the $1000 cash offer on April 

26 as reflected in the e-mails attached to the carrier’s June 19 motion. A second pleading was 

filed by a Mr. Alfonso Estevez, who did not identify himself, who asserted that Mr. Tuttle is not 

an active member of any bar association and as a result is not entitled to act as Mr. Cushman’s 

representative. On July 2, British Airways filed a motion to strike all pleadings subsequent to its 

May 29 answer as raising no new or relevant issues. Finally, on July 5, the Complainant filed a 

response to the carrier’s July 2 motion. We deny the carrier’s July 2 motion; we have considered

claims made in Mr. Cushman’s June 21 and July 5 pleadings and have determined that they 

merely restate previous factual assertions and arguments. As to Mr. Estevez’s claims, we note 

that the Department’s rules of practice impose no specific licensing requirements on those acting 

as representatives for complainants in Department proceedings. Mr. Tuttle clearly is acting with

Mr. Cushman’s approval in this proceeding and we will accept the complainant’s pleadings.
5

ACCORDINGLY, I dismiss the complaint in Docket OST-2013-0101. 

This order is issued under authority assigned in 14 CFR 302.406(b) and shall be effective 

as the final action of the Department within 30 days after service.

By:

Samuel Podberesky

Assistant General Counsel for

Aviation Enforcement and Proceedings

An electronic version of this document is available on the World Wide Web at

http://dms.dot.gov//reports/reports_aviation.asp