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DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

---

DOCKET DOT-OST-2013-0101

SURREPLY OF COMPLAINANT, )

F. BENNETT CUSHMAN II, TO PURPORTED )

CONTINGENT SURREPLY OF BRITISH AIRWAYS )

(DATED JUNE 19, 2013) )

TO COMPLAINT )

(DATED MAY 13, 2013) ) REPLY--- DATED JUNE 21, 2013

FOR VIOLATIONS BY BA OF )

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

OTHER U.S. DOT REGULATIONS ) 

THIS SURREPLY —VERIFIED IN ACCORDANCE WITH 14CFR302.4(B)-- IS A REPLY TO THE UNVERIFIED 

CONTINGENT SURREPLY OF BRITISH AIRWAYS (BA), DATED JUNE 19, 2013, TO THE VERIFIED

COMPLAINT OF F. BENNETT CUSHMAN II FILED WITH THE U.S. DOT ON MAY 13, 2013 AND THE 

VERIFIED REPLY OF MR. CUSHMAN FILED WITH THE U.S. DOT ON JUNE 10, 2013.

THE COMPLAINANT HEREBY REQUESTS ANY PERMISSION OF THE DOT THAT IS REQUIRED BY THE

DOT TO MAKE THIS FILING.

BA, IN ITS PURPORTED BUT UNVERIFIED PLEADINGS , TREATS MR. CUSHMAN’S PROBLEMS AS AN 

“ISOLATED INCIDENT” AND MERELY THE COMPLAINT OF ONE POSSIBLE PASSENGER. THE ALLEGATIONS

AGAINST BA CONTAINED IN MR. CUSHMAN’S COMPLAINT AND REPLY, AS SUBSTANTIATED BY BA’S 

OWN PLEADINGS, ARE BELIEVED TO BE ABOUT BEHAVIOR MUCH MORE WIDESPREAD THAN THAT

AND TO CONSTITUTE WIDESPREAD VIOLATIONS BY A MAJOR AIRLINE ,USING U.S. AIRPORTS AS 

POINTS OF ARRIVAL AND DEPARTURE , OF U.S. DOT RULES. THE WIDESPREAD NATURE OF BA’S

ILLEGAL BEHAVIOR, AND NOT THE PARTICULAR CASE OF MR. CUSHMAN, IS THE REAL ISSUE AT 

STAKE HERE.

THE UNDERSIGNED HEREBY REQUESTS THE U.S. DOT TO EXERCISE ITS AUTHORITY UNDER 49 U.S.C. 

41712 TO INVESTIGATE BA FOR THE ALLEGEDLY WIDESPREAD ILLEGAL AND DECEPTIVE PRACTICES AND
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MISSTATEMENTS AS DESCRIBED IN THIS MATTER AND TO IMPOSE SANCTIONS AND REQUIRE 

CORRECTIONS FOR SUCH PRACTICES AND MISSTATEMENTS. (OF COURSE, THE ISSUE OF HOW

WIDESPREAD BA’S BEHAVIOR IS CAN ONLY ULTIMATELY BE DETERMINED THROUGH THE TYPE OF

INVESTIGATION THE U.S. DOT [AND NOT ANY ONE POSSIBLE PASSENGER, SUCH AS MR. CUSHMAN] CAN

CONDUCT.)

THE PURPORTED BA PLEADINGS DO ABSOLUTELY NOTHING TO COUNTER THE ALLEGED WIDESPREAD

NATURE OF THESE BA VIOLATIONS, PRACTICES AND MISSTATEMENTS.

In BA’S unverified so-called Contingent Surreply (in which all runover page captions appear to 

incorrectly call the document the “ British Airways Answer...”, which it is not ) BA makes a 

number of untruthful statements. The Complainant will respond to only two of the most 

egregious of these misstatements by BA.

On page 2, the second full paragraph, of the Contingent Surreply , BA wrongly seeks to prove 

what it says is “one indisputably false statement” of the Complainant and attaches an exhibit of 

an irrelevantly dated email to supposedly prove its point . The email, dated April 26, 2013, and 

from BA’S General Counsel -- Americas, Richard Mendeles, to the Complainant’s attorney is

wrongly used to show what on another date, April 17, 2013, another part of BA, the BA 

Customer Relations Department , offered the Complainant’-–how could an email on one date

April 26, 2013, from one part of BA –and after nine days of fruitless negotiations between the 

General Counsel, Americas and Complainant’s attorney -- possibly be used to show what was 

offered nine days earlier , on April 17, 2013, by another part of BA? (And let’s not forget that 

the so-called “credits” offered by BA are nearly merely credits that one gets against future

possible expenditures with BA—not truly cash amounts.) Thus, BA’S allegation of “one 

indisputably false statement” by the Complainant in BA’S unverified Contingent Surreply ,

including it’s wrongful proof therefore, is indisputably false itself.
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BA makes more mere unsubstantiated proclamations in its unverified Contingent Surreply to the 

effect that its behavior is merely limited to Mr. Cushman’s case and not “widespread.” Those 

unsubstantiated proclamations are shown to be false by (1) BA’s failure in any pleading to 

counter( and therefore the Complainant’s statements must be taken as admissions by BA) the 

Complainant’s statement that in several test telephone calls to BA in April,2013 by the 

Complainant he was falsely told by BA that BA is a “foreign carrier” and not subject to the rules 

of the U.S. DOT and by (2) BA’s own wrongful statement in its very own purported Answer that “ 

change fees ” are different from cancellation penalty fees and are indeed chargeable and 

nonrefundable to possible passengers within the first 24 hours under 259.5(b)(4) even if 

cancellation penalty fees are refundable during the first 24 hours. So, one must conclude from 

the above that BA’s wrongful behavior is indeed very “widespread.” It is requested that the DOT 

investigate how widespread this behavior is.

The BA unverified Contingent Surreply also throws out more of the “ shoot the messenger” and “ 

these guys are greedy” verbiage, but the Complainant chooses not to engage in this tawdry 

debate since that kind of verbiage is clearly and entirely beside the point.

AND, THE COMPLAINANT REQUESTS THAT ALL PLEADINGS OF BA, PAST AND FUTURE, BE 

REQUIRED TO BE PROPERLY VERIFIED IN ACCORDANCE WITH THE CURRENT AND WIDELY 

PUBLISHED 14CFR302.4(b) AND THAT ANY PAST PLEADINGS BE APPROPRIATELY CORRECTED BY BA 

TO MAKE THIS VERIFICATION POSSIBLE. AFTER ALL, WHAT IS THE BIG DEAL ABOUT BA HAVING 

TO VOUCH FOR THE TRUTHFULNESS OF ITS PLEADINGS AS THE COMPLAINANT HAS DONE?

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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 Complaint. 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 Reply respectfully submitted, this 21stth day of June, 2013

/s/ F. Bennett Cushman II

707-292-5830

Cushman@thefarmsonoma.com

(All communications should be sent to my attorney, George D. Tuttle, 707-8292662 or 

Tuttle@thefarmsonoma.com)

Cushman@thefarmsonoma.com
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CERTIFICATE OF SERVICE

I, George D. Tuttle, hereby certify that on this 21stth day of June, 2013, a copy of the foregoing Surreply 

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

Samuel Podberesky,Esq.-- sam.podberesky@dot.gov and 

Richard Mendles , Esq., General Counsel, Americas, British Airways-- richard.mendles@ba.com.

Nick Lowry, Esq., DOT

Bill Owens, DOT

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

707-829-2662

tuttle@thefarmsonoma.com