                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1350



STACIA   LYNN   KERNS,   Individually,   and    as Personal
Representative of the Estate of Dennis Gregory Kerns, Jr.
and as mother and next friend of A.K. and D.K.,

                Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:07-cv-01006-CCB)


Argued:   March 22, 2012                  Decided:   April 20, 2012


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished opinion.       Judge Gregory     wrote   the
opinion, in which Judge Motz and Judge King joined.

ARGUED: Emily Claire Malarkey, Paul David Bekman, SALSBURY,
CLEMENTS, BEKMAN, MARDER & ADKINS, Baltimore, Maryland, for
Appellant.    Larry David Adams, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.  ON BRIEF: Rod J.
Rosenstein, United States Attorney, Michael L. Schlepp, Second
Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

       The issue presented is whether the United States authorized

Debra    Scott       to    rent    an    automobile       on    a    business      trip   for

purposes      of    traveling       from    the    airport      to     her    hotel.      The

district court found that there was no material dispute of fact

that    Scott      was    not     authorized      to   rent    an    automobile      on   her

business      trip    and       therefore    Scott     was     not   acting     within    the

scope of her employment at the time of her collision with the

deceased Dennis Kerns, Jr.                  The district court held that under

Maryland law the United States could not be held vicariously

liable for Scott’s negligence.                  For the reasons that follow, we

affirm the district court’s ruling.



                                                  I.

       This case arises out of a motor-vehicle accident on June

24, 2005, in which plaintiff Stacia Lynn Kerns’s now deceased

husband, Dennis Kerns, Jr., was hit by Scott on Maryland Route

175    near   the        Fort    Meade   Army     Base.        Scott    was    a   contract

employee for the 99th Regional Readiness Command Family Program

Office (“RRC”); more specifically, Scott was the secretary and

administrative assistant for the RRC family programs director.

Although Scott’s office was in Pennsylvania, Scott was in Anne

Arundel County, Maryland, at the time of the accident to work at

an RRC conference.

                                                   2
     On April 27, 2005, Barbara Wilson, RRC director of family

programs, sent an email to RRC staff and volunteers, noting that

a conference would be held at the Annapolis, Maryland Radisson

hotel    on   June    24-26,    2005.     She    stated    that    a    few     travel

arrangements      were   possible.         One    option    was    to     fly     into

Baltimore-Washington           International      Airport.             “The      hotel

recommends      the   Super     Shuttle   . . .    for     transport      from       the

airport to the hotel,” the email said.                   “The cost is $29 per

person.       If there are sufficient persons flying, a van may be

rented for all to travel to the hotel.                Please advise of your

flight schedules as soon as possible for these arrangements to

be made.”       For those who did not wish to fly, they could drive

their own cars, for which they would be reimbursed for mileage,

or they could rent cars.            “If you would rather take a rental

car, please fill out the registration form accordingly.”                       In all

cases,    the    email   said,    an    employee’s   travel       plans       must    be

reflected on her travel orders.

        A few days before the trip, Scott had a conversation with

Wilson and Thomas Cannon, a coworker, about whether Scott would

like to rent a car or be listed as a driver on one of their

rental cars.      Scott declined both options because she planned to

rent a car for her own personal purposes.                 Nothing in the record

suggests she ever filled out the registration form indicated in

Wilson’s email.

                                            3
        On May 20, 2005, the RRC issued travel orders to Scott, and

it authorized her to travel from McKees Rocks, Pennsylvania, to

Annapolis,    Maryland,       to    attend    the       conference.         Her   orders

provided     for    government      lodging       and    commercial        air    travel.

Although the orders did not say how she should get from the

airport to the conference center, they specifically stated that

she was not authorized to rent a car.                         The orders said that

“[i]f      traveling       by      non-government             procured       commercial

transportation, the maximum reimbursement will be limited to the

least    costly     service     which   would      have       been   permitted      [for]

satisfactory completion of the mission.”                      Cannon’s travel orders

were modified on June 24, 2005, authorizing a rental car.

     On    June     24   Scott     traveled    in       her    own   vehicle      to   the

Pittsburgh,        Pennsylvania      airport        and       flew    to     Baltimore-

Washington     International         Airport       on     a     government-purchased

ticket.     Upon arrival, she rented a vehicle from the airport’s

Alamo Car Rental.         She rented the car in her name and paid for

it with her personal credit card.

     June 24 was set aside on the agenda as a travel day with no

scheduled meetings.        Scott traveled to downtown Baltimore to see

the inner harbor and the aquarium.                She then drove to Fort Meade

to visit the Post Exchange, where she looked at clothing.                               At

9:30 p.m., Scott turned into oncoming traffic and directly into



                                              4
Dennis Kerns, Jr., who was riding a motorcycle.                                 Kerns died of

the injuries sustained in the crash.

       Scott        subsequently         sought      reimbursement           for     roundtrip

mileage       for     her      personal     vehicle         used     to     travel       to   the

Pittsburgh airport, two taxi fares, and her per diem.                                    She was

reimbursed.          She did not request reimbursement for her rental

car.

       Stacia       Kerns      brought     suit     against       the     United    States      on

April    19,    2007,       alleging       the      United    States       should      be     held

vicariously liable for the negligence of its employee, Scott.

On   February        2,    2008,     the    district        court    granted       the    United

States’       motion      to     dismiss    for      lack    of     jurisdiction         on   the

grounds that Kerns had not shown that Scott was acting within

the scope of her employment, as required by 28 U.S.C. § 1346(b).

This    Court,       on     appeal,      held     the    question         was    sufficiently

intertwined         with       the   merits       that      the     plaintiff      should      be

permitted to conduct discovery.                     See Kerns v. United States, 585

F.3d    187    (4th       Cir.    2009).         Both    parties        moved    for     summary

judgment at the close of discovery.                           On March 28, 2011, the

district      court       handed     down     its    memorandum         opinion,       awarding

summary judgment to the United States.




                                                     5
                                         II.

      The   district     court   ruled   that    there      was   not    a   triable

dispute of fact and that the government had not authorized Scott

to use a rental car during the conference.               The court went on to

find that even if the government authorized the rental of a car,

Scott was not engaged in job-related duties at the time of the

accident.     We affirm the district court on the former grounds

without reaching the latter.

      We review de novo the district court’s grant of summary

judgment.     Roe   v.    Doe,    28   F.3d    404,   406    (4th   Cir.     1994).

Summary judgment is appropriate when there is no genuine dispute

of material fact and the moving party is entitled to judgment as

a matter of law.          FED. R. CIV. P. 56(a).              In reviewing the

disputed facts, this Court must draw all inferences in favor of

the   non-moving    party.       Scott   v.    Harris,      550   U.S.   372,   378

(2007).

      The United States is liable under the Federal Tort Claims

Act (“FTCA”) to the extent a private person would be liable

under state law when a plaintiff has been injured because of the

tort of an employee acting within the scope of her employment.

28 U.S.C. § 1346(b)(1).          Under Maryland law, an employer may be

held vicariously liable for the tortious act of its employee

when the employee was acting in the scope of the employment

relationship at the time of the tort.            Oaks v. Connors, 660 A.2d

                                          6
423,    426   (Md.    1995).      An    employee’s       tortious    acts    will   be

considered within the scope of her employment if “they were in

furtherance of the employer’s business and were ‘authorized’ by

the employer.”         Sawyer v. Humphries, 587 A.2d 467, 470 (Md.

1991).    This general rule, however, is refined in the context of

negligent operation of the employee’s automobile; in such cases,

       a master will not be held responsible for negligent
       operation of a servant’s automobile, even though
       engaged at the time in furthering the master’s
       business unless the master expressly or impliedly
       consents to the use of the automobile, and . . . had
       the right to control the servant in its operation, or
       else the use of the automobile was of such vital
       importance in furthering the master’s business that
       his control over it might reasonably [be] inferred.

Oaks, 660 A.2d at 426 (quoting Dhanraj v. Potomac Elec. Power

Co., 506 A.2d 224, 226 (1986)) (alterations in original).                           The

right-to-control concept is critical to the respondeat superior

analysis with respect to motor vehicles.                  “The doctrine may only

be successfully invoked when an employer has either ‘expressly

or    impliedly,     authorized       the    [servant]    to   use    his    personal

vehicle in the execution of his duties, and the employee is in

fact engaged in such endeavors at the time of the accident.’”

Id. at 427 (quoting Dhanraj, 506 A.2d at 226).                      In other words,

the    test   has    two   prongs:     (1)    employer    authorization       of    the

transportation method or employer control over the employee’s

operation of that transportation (or that transportation is a

“vital   necessity”        to   the   employer’s    business)        (2)    while   the

                                               7
employee is engaged in employment duties.                           We deal with the

first prong, not reaching the second.

                                            A.

       Kerns argues that there is at least a triable issue of fact

as to whether the government expressly or impliedly consented to

the use of a rental car on the trip.                 We disagree.

       As    Barbara       Wilson   noted     in     her    April    25,    2005    email

regarding transportation, travel plans must be reflected on each

employee’s travel orders.              Scott’s travel orders specifically

precluded the use of a rental car.                     The email discussing the

travel      orders    notes    that   “[i]f      there     are   sufficient        persons

flying, a van may be rented for all to travel to the hotel.”

This phrase does not indicate that anyone could rent a van to

travel      from     the    airport   to      the     hotel;     only      enough    vans

sufficient to carry those flying would be rented.

       Nevertheless, there is some evidence in the record that

reimbursement was sometimes given to employees for travel not

initially authorized on their travel orders.                          Scott testified

that   after-the-fact         approval      of     rental    cars    was    a   “regular

occurrence” and she had “no doubt” that she would have been paid

if she had submitted a rental car reimbursement.                        But Scott did

not in fact seek a rental car reimbursement, suggesting that she

knew it was not authorized either explicitly or implicitly.



                                                 8
       Before the trip, Wilson told Scott she could travel with

Wilson     or    Cannon    in   their     authorized         rental   cars      from   the

airport to the hotel.           Wilson also offered to authorize Scott to

rent   a    car,    presumably      so    Scott      could    transport        other   RRC

employees from the airport to the hotel.                        Scott declined the

offers.     The facts show that Scott rented her own car so that

she could explore and sightsee before the conference.                            She did

not seek authorization for the car before the trip despite the

fact that she made a reservation for the car before the trip

began.      It     is    telling   that   the       RRC   altered     Cannon’s     travel

orders prior to the trip to include the use of a rental car but

it did not modify Scott’s.

       The facts here are arguably weaker for the plaintiff than

those in the relevant Maryland state court cases in which the

plaintiffs       could    not   establish    respondeat        superior        liability.

See Oaks v. Connors, 660 A.2d 423 (Md. 1995); Dhanraj v. Potomac

Elec. Power Co., 506 A.2d 224 (Md. 1986); Henderson v. AT&T

Info. Sys., Inc., 552 A.2d 935 (Md. Ct. Spec. App. 1989).                           Here,

the government neither promised nor gave travel reimbursements

to Scott, whereas in Henderson the plaintiff was reimbursed for

mileage and travel expenses by his employer.                             Henderson, 552

A.2d   at    939.        Furthermore,     Scott       traveled      by    an    expressly

unauthorized form of travel prohibited by her travel orders.                            In

contrast, the Dhanraj employer did not specifically authorize

                                                9
any particular mode of travel, suggesting that it implicitly

approved of any reasonable method of transportation -- again, a

much stronger case for the plaintiff than the instant case.                                     See

Dhanraj, 506 A.2d at 227.

       There may still be vicarious liability in the automobile

context when “the use of the automobile was [ ] of such vital

importance      in    furthering         [the    employer’s]          business          that    the

control over it might reasonably be inferred.”                              Id. at 228.         The

closest Maryland case to the instant facts is Regal Laundry Co.,

Inc.   v.    A.S.     Abell      Co.,    163     A.    845     (Md.    1933).           There,    a

Baltimore      Sun    reporter      was     returning          to     the    office      from     a

meeting     that     he    was   assigned        to    cover     when       he    got    into    an

accident.      The Court of Appeals held that the Baltimore Sun had

implicitly authorized the use of the reporter’s own car because

the editor knew that would be how the reporter would get to and

from the meeting and because the reporter was reimbursed for his

mileage.       Id.    at    847.        Furthermore,           the    reporter      was    never

diverted from his route.                Id. at 848.          Here, however, the use of

a rental car was explicitly not authorized for Scott, and Scott

was    never    reimbursed         for     her        rental    car     expenses.              Even

accounting for the fact that Scott would not have rented a car

were it not for the Maryland conference, Scott did not need to

rent a car to arrive there.                See Oaks, 660 A.2d at 427 (finding

that   the     fact    that      employee       used     his    car     at       work    for    the

                                                  10
employer’s benefit did not render the drive to work “special

circumstances”           warranting     respondeat      superior     liability);

Barclay v. Ports Am. Baltimore, Inc., 18 A.3d 932, 938 (Md. Ct.

Spec. App. 2011) (“[T]he requisite ‘special circumstances’ must

admit      some    express     or   implied   control   over   the   vehicle   or

consent to its use in performing work duties.”).                   Regal Laundry

is therefore distinguishable.

       We affirm the district court’s finding that there is no

material dispute of fact that Scott was not authorized to rent a

car to travel from the Baltimore airport to the hotel.                   Because

we hold that a rental car was not authorized for Scott, we need

not reach the issue of whether she was within the scope of her

employment at the time of the accident. *

                                         B.

       Kerns has another argument:            that the district court should

have certified to the Maryland Court of Appeals the question of

whether to import the traveling-employee doctrine into the tort

context.          The district court found that the “available state

law”       was     not    so    “insufficient”     that    certification       was

appropriate.        J.A. 467 n.2 (quoting Roe v. Doe, 28 F.3d 404, 407


       *
       Nor need we analyze whether Maryland’s scope-of-employment
prong of the respondeat superior test is coextensive with the
FTCA requirement for governmental liability that the tortfeasor
acted within the scope of her employment.



                                              11
(4th Cir. 1994)); see also Buckingham v. United States, 124 F.

Supp. 2d 943, 944-45 (D. Md. 2000) (declining to certify to the

Maryland Court of Appeals a question on the applicability of the

traveling-employee doctrine in the respondeat superior context).

      Under     Maryland     law,       the    Court        of     Appeals     may    answer

questions     certified      to        it     only       “if     the     answer      may    be

determinative      of   an    issue           in     pending       litigation        in    the

certifying court and there is no controlling appellate decision,

constitutional provision, or statute of this State.”                                 MD. CODE

ANN., CTS. & JUD. PROC. § 12-603.                  The Court of Appeals has noted

that the purpose of the certification procedure is “to promote

the widest possible use of the certification process                            . . . [and

to]   address    questions        of    Maryland          law     that   are    unsettled,

uncertain, or otherwise controversial in light of cases decided

by other courts.”          Proctor v. Wash. Metro. Area Transit Auth.,

990 A.2d 1048, 1056 (Md. 2010).                         Here, as the district court

correctly found, there is clear appellate court precedent.

      The language of Dhanraj may be amenable to two readings.

The Maryland Court of Appeals either decided that importation of

the traveling-employee doctrine is inappropriate or it refused

to determinatively resolve the question beyond its own facts.

“We see no need to resort, in the circumstances here,” the court

said,   “to     cases   under       the       Workmen’s          Compensation     Act      and

comparable      employee     compensation               statutes    to    determine        the

                                                   12
applicability of the doctrine of respondeat superior in this

tort action.”      Dhanraj, 506 A.2d at 227-28.        A subsequent court

of   special     appeals   case   interpreted     Dhanraj   to    mean      that

Maryland courts may not import the traveling-employee doctrine

into the tort context.       See Sheets v. Chepko, 573 A.2d 413, 418

(Md. Ct. Spec. App. 1990) (“[I]n Dhanraj, the Court of Appeals

specifically rejected the application of principles of Worker’s

Compensation to a determination of whether a particular activity

was within the scope of employment for purposes of establishing

vicarious liability of an employer.”).            There is no conflicting

authority   in    the   appellate   cases    of   Maryland,      and   it    was

therefore not error for the district court to refuse to certify

the issue to the Maryland Court of Appeals.



                                      III.

     For the foregoing reasons, the judgment of the district

court is affirmed.

                                                                       AFFIRMED




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