                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


PAUL L. WEBER,                          
                 Plaintiff-Appellant,
                 v.                             No. 00-1027
USAIRWAYS, INCORPORATED,
              Defendant-Appellee.
                                        
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              Joseph Robert Goodwin, District Judge.
                          (CA-99-630-2)

                      Argued: January 22, 2001

                      Decided: March 29, 2001

       Before WILLIAMS and MOTZ, Circuit Judges, and
     Claude M. HILTON, Chief United States District Judge
    for the Eastern District of Virginia, sitting by designation.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Clem C. Trischler, Jr., PIETRAGALLO, GOSICK &
GORDON, Pittsburgh, Pennsylvania, for Appellee. ON BRIEF: Paul
L. Weber, MOORE & WEBER, P.L.L.C., Charleston, West Virginia,
for Appellant.
2                       WEBER v. USAIRWAYS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Paul Weber brought suit against US Airways, Inc., alleging that
USAir committed breach of contract and fraud under West Virginia
common law. Finding Weber’s fraud claim to be preempted by the
Airline Deregulation Act, we affirm the district court’s order dismiss-
ing the fraud claim and remanding Weber’s state law claim for breach
of contract to state court.

   Weber was scheduled to be a passenger on a USAir flight from
Charleston, West Virginia, to Jacksonville, Florida. That flight, how-
ever, was overbooked. USAir asked for volunteers to relinquish their
seats in exchange for a free round-trip ticket on a future USAir flight
to anywhere in the continental United States. Weber agreed and was
given a travel voucher. However, when he went to redeem the
voucher for a trip during Thanksgiving weekend, he was told that the
voucher was limited to "Z-class" seats and that no such seats were
available on the requested flight. Nevertheless, seats in other price
classes were available and Weber purchased one of those. Weber
claims that when he voluntarily gave up his seat, he was never told
that there would be restrictions on the use of the voucher.

   Weber thereafter brought suit in state court in West Virginia for
breach of contract and fraud. USAir removed the case to the United
States District Court for the Southern District of West Virginia based
on diversity of citizenship. USAir then moved to dismiss the fraud
count on preemption grounds. The district court granted the motion,
dismissed the fraud claim, and remanded the breach of contract claim
back to West Virginia state court. Weber appeals from that order of
the district court.

  We review the district court’s decision on USAir’s motion to dis-
miss under the de novo standard of review. See Stuart Circle Hospital
                         WEBER v. USAIRWAYS                            3
Corp. v. Aetna Health Management, 995 F.2d 500 (4th Cir. 1993).
Like the district court, we assume as true all facts as plead by Weber.
See Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

   Assuming that Weber has stated a claim of fraud, the question in
this case is whether that claim is preempted. USAir argues that the
Airline Deregulation Act preempts Weber’s fraud claim. USAir
points to the following provision in the ADA: "Except as provided in
this subsection, a State, political subdivision of a State, or political
authority of at least 2 States may not enact or enforce a law, regula-
tion, or other provision having the force and effect of law related to
a price, route, or service of an air carrier that may provide air trans-
portation under this subpart." 49 U.S.C. § 41713(b)(1) (emphasis
added). The question is whether Weber’s common law fraud claim is
"related to a price, route, or service of an air carrier."

   Weber treats his fraud claim as if it were akin to a tort such as bat-
tery or assault that was committed by an airline employee upon a pas-
senger. Such a tort would have nothing to do with the price, route, or
service of an air carrier and would not be preempted, he states. Like-
wise, he argues that a fraud action is nothing more than a tort action
like battery or assault: a method for personal recovery for a personal
wrong that was committed.

   The Supreme Court has addressed preemption under the ADA. In
Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), the Court
held that state restrictions on advertising by airlines were preempted
by the ADA. In American Airlines, Inc. v. Wolens, 513 U.S. 219
(1995), the plaintiff sued American Airlines for modifying the terms
of its frequent flier program. The plaintiff argued that this devalued
credits that members had already earned. In discussing the plaintiff’s
breach of contract claim, the Court stated, "We do not read the
ADA’s preemption clause, however, to shelter airlines from suits
alleging no violation of state-imposed obligations, but seeking recov-
ery solely for the airline’s alleged breach of its own, self-imposed
undertakings." Id. at 228. A breach of contract cause of action merely
holds the parties to the terms of their contract—in that case to the
terms of the frequent flier program. The Court, however, struck plain-
tiff’s claim for fraud under the Illinois Consumer Fraud Act. The law
made unlawful "[u]nfair methods of competition and unfair or decep-
4                          WEBER v. USAIRWAYS
tive acts of practices, including but not limited to the use or employ-
ment of any . . . fraud." Id. at 227. The Court held that the statute was
a "means to guide and police the marketing practices of the airlines"
and thus related to air fares. This was preempted action under the
ADA.

    Weber’s claim for fraud is preempted because it seeks to enforce
a legal duty on the defendant that is independent of the parties’ con-
tract. In essence, Weber’s claim suggests that USAir’s duty was to
disclose the Z-class restriction before he gave up his seat. It is no dif-
ferent than if the West Virginia legislature had enacted a statute, like
Illinois did in Wolens, writing that duty into the legislative code. The
effect and purpose of Weber’s action is the same. His action for fraud
relates to pricing and servicing (the provision of tickets to bumped
passengers) and is barred by the preemption clause of the ADA.

   Other circuits are in line with this holding. See Musson Theatrical,
Inc. v. Federal Express Corp., 89 F.3d 1244 (6th Cir. 1996) ("State
law fraud claims are preempted . . . because Congress intended [the
Department of Transportation] to be the sole legal control on possible
advertising fraud by air carriers."); Travel All Over the World, Inc. v.
Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996) ("[Fraud] claims
expressly refer to airline ‘services,’ which include ticketing as well as
the transportation itself. . . . Such tort claims clearly ‘relate to’ the air-
line’s provision of services."); West v. Northwest Airlines, Inc., 995
F.2d 148 (9th Cir. 1993) ("Overbooking and bumping are accepted
forms of price competition and reduction in the deregulation period,
thus any law or regulation which results in penalizing airlines for
these practices is preempted.").

  Weber’s fraud claim is therefore preempted and the district court
was correct in granting the motion to dismiss.

                                                                AFFIRMED
