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### - June 21 , 2013 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, 2 013 AND THE

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

T H E C O M P L A I N A N T H E R E B Y R E Q U E S T S A N Y P E R M I S S I O N O F T H E D O T T H A T I S R E Q U I R E D B Y T H E

D O T T O M A K E T H I S F I L I N G

.

BA

, IN ITS PURPORTED BUT UNVERIFIED PLEADINGS

, TREATS MR. CUSHMAN’S PROBLEMS AS AN

“ISOLATED INCIDENT” AND MERELY THE COMPLAINT OF ONE POSSI BLE 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 VIOLATION S 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 DECEPT IVE PRACTICES ANDPage 2 of 5



### - June 21 , 2013

MISSTATEMENTS AS DESCRIBED IN THIS MATTER AND TO I M POSE SANCTIONS AND REQUIRE

CORRECTION S 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 MIS S TATEMENTS

.

In BA’S unverified so

- called C ontingent Surreply (in which all runover page captions appear to

incorrectly call the document the “ British Airways Answer

... ” , w hich it is not ) BA make s a

number of u ntruthful statements. T he Complainant will r espond to only two of the most

egregious of these misstatements by BA

.

On page 2, the second full paragraph, of the Contingent Sur r eply

, BA w r o n g l y seeks to prove

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

an irrelevantly dated email to supposedly prove its point

. The email, dated April 26 , 2013, and

from BA’S G eneral C ounsel

- - 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 Com plaina nt’

- – how could an email on one date

April 26, 2013, from one part of BA

– and after nine days of fruitless negot iations bet ween the

G eneral C ounsel, Americas and Complainant’s attorney

-- possibly be used to show what was

offered nine days ear lier , on April 17, 2013, by another part of BA? (An d let’s not forget that

the so

- called “credits” offered by BA are nearly m e r e l y credits that one get s a g a i n s t f u t u r e

p o s s i b l e e x p e n d i t u r e s w i t h B A

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

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

,

i n c l u d i n g i t ’ s w r o n g f u l p r o o f t h e r e f o r e

, is indisputably false itself.Page 3 of 5



### - June 21 , 2013

BA makes more mere unsubstantiated proclamations in its unveri fied Contingent Surreply to the

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

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

coun ter ( 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 purpor ted Answer that “

change fees ” are diffe re nt fro m cancellation penalty fees a nd are indeed chargeable and

nonrefundable to possible passenger s within the first 2 4 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 be havior 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 gre edy” 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 DE AL ABOUT BA HAVING

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

######Page 4 of 5



### - June 21 , 2013 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 r espectfully submitted, this 21st th 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.c omPage 5 of 5



### - June 21 , 2013 CERTIFICATE OF SERVICE

I , George D. Tuttle, hereby certify that on this 21st th 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 Mend les

, Esq., G eneral C ounsel, A mericas, B ritish A irways

-- richard.mendles@ba.com

.

Nick Lowry, Esq., DOT

Bill Owens, DOT

/ s / George D.Tuttle, attorney for M r. Cushman

707

- 829

- 2662

tuttle@thefarmsonoma.com