Benjamin Edelman v. Delta Air Lines
TSA fee refunds - complaint
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BEFORE THE DEPARTMENT OF TRANSPORTATION
OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS
WASHINGTON, D.C.
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)
Benjamin Edelman, )
third-party complainant )
)
v. ) Docket DOT-OST-2021-____
)
Delta Air Lines )
)
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COMPLAINT OF BENJAMIN EDELMAN
Comments with respect to this document should be addressed to:
Benjamin Edelman
2223 108
th
Ave. SE
Bellevue, WA 98004
E-mail: [email protected]
Dated: June 2, 2021
Benjamin Edelman v. Delta Air Lines
TSA fee refunds - complaint
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BEFORE THE DEPARTMENT OF TRANSPORTATION
OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS
WASHINGTON, D.C.
------------------------------------------------------ )
)
Benjamin Edelman, )
third-party complainant )
)
v. ) Docket DOT-OST-2021-____
)
Delta Air Lines )
)
------------------------------------------------------ )
COMPLAINT OF BENJAMIN EDELMAN
1. This complaint arises out of Delta’s refusal—both in its Contract of
Carriage and in practice—to refund TSA fees, despite the clear requirement of governing
regulation and despite my written request.
I. FACTS
2. In March 2019, I redeemed Delta loyalty points for a family member to
travel. I surrendered the required points through Delta’s online booking tool, and I paid
the required TSA fee, $11.20 round-trip, by credit card. Due to a change of plans, the
passenger traveled only one-way.
3. In June 2019, I redeemed Delta loyalty points for a different family
member to travel. I surrendered the required points through Delta’s online booking tool,
and I paid the required TSA fee, $11.20 round-trip, by credit card. Due to a change of
plans, the passenger did not travel at all.
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4. Via email to Delta customer service, I requested a refund of the TSA fees
at issue. See Attachment 1 (sent April 23, 2020). Delta confirmed receipt of my request
the same day. See Attachment 2. However Delta never provided a substantive written
response to my complaint, nor did Delta provide the refund I requested.
II. CARRIERS ARE REQUIRED TO REFUND TSA FEES IF A PASSENGER
DOES NOT TRAVEL
5. Applicable regulations make clear that airlines may not withhold TSA fees
when an itinerary is cancelled or a passenger otherwise does not travel. See 49 CFR §
1510.9(b) (emphasis added):
Any changes by the passenger to the itinerary are subject to additional collection
or refund of the security service fee ... as appropriate.
The passengers changed the itineraries at issue by failing to check in within the checkin
deadlines, whereupon Delta’s computer systems automatically canceled the reservations.
That cancellation obviated the basis for the security fee, per the calculation in 49 CFR §
1510.5(a). As a result, 1510.9(b) obliges Delta to “refund” the fee.
6. Secondary authorities confirm the plain meaning of 1510.9(b). The DHS
Office of Audits in 2006 prepared a Review of the Transportation Security
Administration Collection of Aviation Security Service Fees (DHS OIG-06-35). At page
9 (PDF page 13), the DHS report summarizes: “air carriers have no grounds to keep fees
of any kind that are owed to the ticket purchaser or TSA.”
7. The GAO in July 2010 prepared a report entitled Consumers Could
Benefit from Better Information about Airline-Imposed Fees and Refundability of
Government-Imposed Taxes and Fees (GAO-10-785) which again restated passengers’
entitlement to TSA fee refunds when they do not travel. The GAO summarized:
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“consumers with unused nonrefundable tickets with expired or lost value are entitled to a
full refund of the September 11th Security Fee, but few consumers request a refund
because airlines are not required to inform consumers of this.”
8. TSA’s guidance to airlines is in accord. In a November 21, 2002 letter,
Randall Fiertz, then-Acting Director of Revenue of TSA, wrote to James Hultquist,
Managing Director of Taxes for the Air Transport Association, to provide guidance on
the proper handling of TSA fees. (That letter was placed in docket TSA-2001-11120 and
is available there as item #59.) Fiertz explained: “When a ticket purchaser does not use a
ticket for air transportation and the ticket then expires or loses its value, the September
11
th
Security Fee involved is subject to a refund by the collecting carrier to the ticket
purchaser. If such a ticket purchaser requests a refund of the September 11
th
Security Fee
collected, the carrier must provide the requester with a full refund of the fee.”
III. DELTA’s CONTRACT OF CARRIAGE IMPERMISSIBLY PURPORTS
TO REFUSE ALL REQUESTS FOR REFUND OF TSA FEES
9. The Delta Contract of Carriage (Rule 22.B.1) specifically denies the
possibility of a passenger receiving a refund of prepaid TSA fees (emphasis added):
Delta will not refund any taxes, fees or charges collected upon nonrefundable
tickets.
Delta should be praised for its clarity, but not for its substance. Compare the plain
language of 49 CFR § 1510.9(b) which specifically requires an airline to refund a
passenger’s prepaid TSA fee when the passenger does not travel.
IV. THE POSSIBILITY THAT NOT ONLY DID DELTA DID NOT RETURN
MY TSA FEE TO ME, BUT IT ALSO DID NOT PAY THAT FEE TO TSA
10. Having refused to return my TSA fee to me, one might ask where Delta
put the money and how it accounts for these funds. In general I understand that when a
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customer does not travel on a Delta ticket, Delta books that passenger’s fare as revenue.
Delta has given no indication that it remits passengers’ TSA fees to the TSA when
passengers do not travel.
11. Governing regulation establishes heightened requirements to protect the
TSA fees that carriers hold. 49 CFR § 1510.11(b) requires carriers to hold TSA fees “in
trust … for the beneficial interest of the United States.” § 1510.11(c) further requires
carriers to “account for TSA fees separately” from other funds they receive. Finally, §
1510.11(d) requires carriers to disclose in their financial statements the existence and the
amount of security service fees held in trust. Fiertz’s November 21, 2002 letter indicates
that carriers are to label such disclosures with the verbatim language “Security Fees
imposed, collected, refunded, and remitted, as required by 49 CFR 1510.17 as amended.”
I have reviewed Delta’s financial statements, as periodically filed with the SEC. I have
been unable to find any reference to any security fees held in trust, nor to the language in
Fiertz’s 2002 letter (or any language substantially similar).
12. TSA’s March 20, 2020 “Guidance to Industry” reminds carriers of the
absolute obligation to refund TSA fees to passengers or, failing that, to pay them to the
TSA – but never to withhold such fees for their own use. The TSA’s bottom line is
unambiguous: “If an air carrier does not refund the Passenger Fee to the passenger, the
fee shall be remitted [to] TSA.” Delta might argue that its COC provision entitles it to
deny refunds. But even if that section of COC operates as Delta seems to intend, that
would not excuse Delta from paying the funds to TSA. Fiertz’s 2002 letter is in accord,
noting: “In any case where an air carrier does not refund September 11
th
Security Fees to
the ticket purchaser, the fees must be remitted to … TSA” (emphasis added). In light of
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Delta’s refusal, both in its COC and in practice, to grant the refunds required by
1510.9(b), the Department should investigate the possibility that Delta similarly failed to
turn over these funds to TSA and instead treated these funds as ordinary revenue.
V. DELTA FAILED TO PROVIDE A SUBSTANTIVE WRITTEN RESPONSE
TO MY COMPLAINTS
13. I submitted the complaint shown in Attachment 1 on April 23, 2020.
Delta confirmed receipt of my request the same day. See Attachment 2. However Delta
never provided a substantive written response to my complaint. 14 CFR 259.7(c)
requires such substantive written response within 60 days. More than 400 days have
elapsed.
14. I ask that the Department of Transportation:
(1) Exercise its authority under 49 USC § 41712 to open an investigation
of Delta for having engaged in the unfair or deceptive practices
described above;
(2) Order Delta to provide to the DOT and to me records sufficient to
determine the current location of my TSA fee payments, i.e. whether
my TSA fees were paid over to TSA, offset against Delta’s obligation
to hand over future fees to TSA, or retained as revenue by Delta;
(3) Order Delta to provide to the DOT and to me records sufficient to
establish Delta’s compliance with 49 USC § 1510.11(b), (c), and (d);
(4) Order Delta to search its records for other customers who requested
such refunds and to produce records of such requests and Delta’s
responses for DOT evaluation;
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(5) Order Delta to refund to ticket purchasers all TSA fees that are
refundable under § 1510.9(b), whether or not passengers so requested;
or in the alternative, order Delta to contact all affected passengers and
affirmatively advise them of their right to request such refunds;
(6) Order Delta to modify its Contract of Carriage to include a
commitment to comply with 49 CFR § 1510.9(b), disallow Delta from
imposing any requirements or barriers to such refunds, and require
Delta to commit to provide such refunds without regard for the statute
of limitations;
(7) Require Delta to explain why it failed to provide a substantive written
response to my complaint, in violation of 14 CFR 259.7(c), and to
identify any other passengers to whom Delta similarly failed to
provide substantive written responses;
(8) Impose appropriate civil penalties.
Respectfully submitted,
/s/
Benjamin Edelman
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Attachment 1: My submission to Delta Customer Care
Ticket 006XXXXXXXXXX. Passenger XXXXXXXX XXXXXXXX did not travel on
the second segment. Please refund the TSA fee ($5.60 one-way) to original form of
payment.
Ticket 006XXXXXXXXXX. Passenger XXXXXXXX XXXXXXXX did not travel.
Please refund the TSA fee ($11.20 round-trip) to original form of payment.
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Attachment 2: Delta’s automatic reply
Thank You for Your Feedback [ref:_XXXXXXXXXXXXXXXX:ref]
Customer Care <[email protected]> Thu, Apr 23, 2020 at 1:56 PM
Reply-To: [email protected]
To: "[email protected]" <[email protected]>
Hello,
Thank you for taking the time to write to us. Your Delta Comment/Complaint case
number is XXXXXXXX.
During these times of rapid change, we want you to know that nothing is more important
to us than the health and safety of our customers and employees. It’s important you know
we are taking all of our customer’s concerns and feedback seriously.
If you are traveling soon and cannot get through on one of our service channels, rest
assured, we will ensure all changes will be processed and credits will be issued if you
don't take your flight. Please visit Delta.com/Coronavirus for more information.
If you are in need of immediate assistance, please review the following options below.
1. If you need to rebook or cancel your flight, please use the Fly Delta App or visit
www.delta.com/mytrips
2. If your bag did not arrive as intended, please visit delta.com/trackbag to check the
status or to file a delayed baggage report.
3. To access a copy of your flight reservation and/or checked-baggage receipt,
please click VIEW RECEIPTS in the My Wallet section when logged on to delta.com or
the Fly Delta app.
Please see the below information, which we hope you will find useful.
COVID-19 Travel Information & Updates
Due to the evolving situation, please visit our Coronavirus Travel Updates page on
delta.com here. We continue to update this page with our latest advisories and waivers.
Impacted Travel
If your ticket meets the conditions of our waivers, we want to assure you that the value of
your ticket won’t be lost, and you will not be charged a fee when you use this credit for a
Benjamin Edelman v. Delta Air Lines
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future reservation. You will be able to apply the full value of your ticket towards any
future Delta bookings with no change fee penalty for an entire year from the date you
purchased it. When you are ready to rebook and use this credit, you may book with us
online or by contacting our Reservations Team. Please remember to keep your ticket
number handy as it’s needed to redeem your credit when rebooking.
Credits Appearing in Accounts
If you do not see a credit in your delta.com account, please know that you will have the
full value of your ticket available for booking a future reservation. When you are ready to
rebook, keep your ticket number handy and contact our Reservations Team.
Thank you for choosing Delta, we look forward to welcoming you onboard one of our
flights soon.
Regards,
Customer Care
Delta KLM AF Small Logo
This message (including any attachments) contains confidential information intended for
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_______________
ref:_00D1aY3af._5001Pz4IQ6:ref
Case Number: XXXXXXXX
Subject: CC-Voice a Complaint-After Trip
Benjamin Edelman v. Delta Air Lines
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Certificate of Service
I hereby certify that I have, this 2nd day of June 2021 caused a copy of the foregoing
Complaint to be served by electronic mail on the following persons:
Steven J. Seiden [email protected]
Kimberly Graber, Esq. [email protected]
Blane Workie, Esq. [email protected]
Robert Gorman, Esq. [email protected]
/s/
_____________________
Benjamin Edelman
