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DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

---

DOCKET DOT-OST-2013-0101

RESPONSE TO DOT ORDER OF DISMISSAL

OF COMPLAINT OF COMPLAINANT, )

F. BENNETT CUSHMAN II, )

DATED MAY 13, 2013 ) RESPONSE--- DATED JULY 23, 2013

FOR VIOLATIONS BY BRITISH AIRWAYS OF )

49 U.S.C. 41712 AND 14 CFR 259.5 (B)(4 )AND )

OTHER U.S. DOT REGULATIONS ) 

THIS RESPONSE IS TO THE ORDER OF DISMISSAL OF THE DOT, DATED JULY 22 , 2013, TO THE

COMPLAINT OF F. BENNETT CUSHMAN II FILED WITH THE DOT ON MAY 13, 2013. THE DISMISSAL IS

UNJUST FOR TWO PRIMARY REASONS.

FIRST, IT WOULD APPEAR THAT THE RULE VIOLATIONS BY BRITISH AIRWAYS COMPLAINED OF IN THE

COMPLAINT ARE NOW TREATED AS RESOLVED BECAUSE THE DOT, AS A RESULT OF THE COMPLAINT BUT

WITHOUT EVER NOTIFYING THE COMPLAINANT, HAS NOTIFIED THE AIRLINES AS TO THE PROPER

INTERPRETATION OF THE VERY STRAIGHTFORWARD RULE THAT THEY HAVE BEEN VIOLATING.

SECOND, THE COMPLETELY UNVERIFIED PLEADINGS OF BA ARE NOW ACCEPTED AS TRUE WITHOUT,

ANY INVESTIGATION BY THE DOT, AS OPPOSED TO THE COMPLETELY VERIFIED PLEADINGS OF A

CONSUMER , WHICH ARE NOT ACCEPTED AS TRUE.

1. In its attempt to dismiss the Complaint of May 13, 2013, the DOT chooses to ignore the fact that the

precise interpretation of the DOT’S own Rule 14CFR259.5(B)(4) [see Exhibit 1] argued for by the 

Complainant in the Complaint, and vigorously denied by BA in its Answer on May 28, 2013, is indeed 

the interpretation that was sent to all airlines by the Dot on May 31, 2013—without any 

acknowledgement to the Complainant that he was right. That Complaint on May 13, 2013 said that BA 

violated 14CFR259.5(b)(4) which requires that possible passengers have the right to cancel, or change,

any reservation without penalty within the first 24 hours. On May 28, 2013, BA wrongly argued that the
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rule does not restrict “change” penalty fees for changes made within the first 24 hours although it

restricts “cancellation ” penalty fees. To restate BA’s absurd point, a passenger can be charged a

“change” fee but not a “cancellation” fee for attempts by the passenger to correct their reservation

within the first 24 hours. And apparently the DOT agreed that this interpretation was absurd —but

elected to never share that with the Complainant. Instead the DOT chose to simply dismiss the

Complainant’s case. And in the DOT’s Order of dismissal, and taking a line from BA, it has the dishonesty

to say that “...nothing in the rule [14CFR259.5(b)(4)] specifically refers to change fees.” And then to top

things off, the DOT says that no matter how tardily a refund is made by an airline after an egregious rule

violation nor after how much complaining (even to the CEO), there can be no justified complaint by the

consumer against the airline if a refund is eventually granted .

2. Despite the fact that the widely published 14 CFR 302.4(b) [See Exhibit 2] requires that all pleadings 

must be verified and despite the fact that the DOT twice told the Complainant in writing that all

pleadings of BA must be verified, none of BA’s pleading s –NONE-- were verified while ALL of

Complainant’s pleadings were all verified. The DOT, in its Order of Dismissal, agrees with BA that

despite the clear language of 14CFR302.4(b) requiring verification , and despite the DOT’s written

assurances to Complainant that verification by BA would be required , no verification by BA is required.

It clearly seems to me that BA and other large airlines are in collusion with the DOT—all to the

disadvantage of the flying public. The DOT says “Mr. Cushman has not offered any rationale for insisting

on verification in this instance.” Isn’t a desire for the truth from BA, and for compliance with the rule of

law, rationale enough? And, of course, WHY WILL BA NOT SIMPLY VERIFY ITS OWN PLEADINGS AS A

MATTER OF SIMPLE HONESTY?

3. Despite the verified statement of the Complainant that he was told by BA that it was a “foreign”

airline and not subject to the U.S. DOT nor subject to any of the rules of the U.S. DOT, including the 24-

hour rule, the DOT chooses to take the unverified words of BA without further investigation of any kind.
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One would have thought that the notion of representatives of an airline of the size of BA telling the

flying public that it was not subject to DOT jurisdiction would call for an investigation by the DOT..

4. And one other thing. Footnote 1 to the Order of Dismissal talks about “confusion in the pleadings” 

.There is no “ confusion”—other than apparently on the part of the DOT. The tickets for Mr. Cushman

were always, and are now, san francisco—london—paris—boston and for Mr. Tuttle were always , and

are now, san francisco—london—paris—san francisco. 

5. The manner in which the DOT has handled this matter, from beginning to end is shameful and reeks

of incompetence or cronyism with the big airlines or worse. And the Complainant intends to subject it to

the harsh light of publicity and Congressional review unless the DOT addresses fairly and correctly the

issues in the Complaint, which it has not to date.

 ---------------

For the reasons stated above it is requested that the Order of Dismissal not be made effective nor be

the final action of the DOT in this matter.


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VERIFICATION

Pursuant to Title 18 United States Code Section 1001, I certify that I have not in any manner knowingly 

and willfully falsified, concealed or failed to disclose any material fact or made any false, fictitious, or 

fraudulent statement or knowingly used any documents which contain such statements in connection 

with the preparation, filing or prosecution of this pleading . I understand that an individual who is found 

to have violated the provisions of 18 U.S.C. Section 1001 shall be fined or imprisoned not more than five 

years or both.

This pleading respectfully submitted, this 23rd day of July, 2013

/s/ F. Bennett Cushman II

707-292-5830

Cushman@thefarmsonoma.com
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CERTIFICATE OF SERVICE

I, George D. Tuttle, hereby certify that on this 23rd day of July , 2013, a copy of the foregoing Response

of the Complainant was served via electronic mail on the parties named below or provided via electronic

email to the persons named below:

Samuel Podberesky,Esq., DOT

Richard Mendles , Esq., General Counsel, Americas, British Airways

Nick Lowry, Esq., DOT

Bill Owens, DOT Office of the OIG

Scott Harding, DOT Office of the OIG

Don H. Hainbach

Erin M. Tallardy

/s/ George D.Tuttle, attorney for Mr. Cushman.

( All communications to Complainant should be sent to Mr. Cushman’s attorney, George D. Tuttle, at 

Tuttle@thefarmsonoma.com)