                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-1826


AMBER L. AYRES, individually and as wife and guardian of
the person and property of; RICHARD C. AYRES, a Disabled
Adult,

                 Plaintiffs – Appellants,

           v.


MAYOR AND CITY COUNCIL OF THE DISTRICT OF COLUMBIA; UNITED
STATES OF AMERICA,

                 Defendants – Appellees,

           and


DAN TANGHERLINI, Director, District of Columbia Department
of Transportation; NORMAN Y. MINETA, Secretary, United
States   Department   of  Transportation;  DARRELL  LAMONT
SELLERS; ESTATE OF JOHN W. HARLEY,

                 Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:04-cv-04068-WDQ)


Argued:   May 16, 2008                       Decided:   August 8, 2008


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.
ARGUED:    Francis A. Pommett, III, Baltimore, Maryland, for
Appellants.   Todd Sunhwae Kim, OFFICE OF THE ATTORNEY GENERAL
FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Appellees.
ON BRIEF:   Linda Singer, Attorney General for the District of
Columbia,   Edward   E.   Schwab,   Deputy  Solicitor   General,
Karen A. Weiss, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C.,
for Appellee Mayor and City Council of the District of Columbia.
Peter D. Keisler, Assistant Attorney General, Mark B. Stern,
Eric J. Feigin, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee United States.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Amber L. Ayres filed a suit against the Mayor and City

Council of the District of Columbia (collectively Athe District@)

and the United States on behalf of herself and her husband,

Richard C. Ayres (collectively AAyres@), who was severely injured

while traveling on an interstate highway in the District.                    The

district court dismissed all claims against the District and the

United    States.      On   appeal,    Ayres   contends   that    the   district

court erred.        After thoroughly reviewing Ayres=s assignments of

error, we affirm the district court=s dismissal.



                                        I.

     On     January     3,    2002,      at    approximately       2:51     p.m.,

Richard C. Ayres was driving his 1998 Ford Ranger northbound on

I-295 at Blue Plains, S.W. in Washington, D.C., in the right-

hand lane.     At the same time, Darrell L. Sellers was traveling

southbound on I-295 when he lost control of his vehicle and

crossed the grass median strip, striking John W. Harley=s Ford

Escort,    instantly    killing       him.     Harley=s   car    collided   with

Mr. Ayres=s car, severely injuring him.

     Amber Ayres, on behalf of her husband and herself, filed a

seven-count complaint in the United States District Court for

the District of Maryland.         The United States filed a motion to

dismiss under Rule 12(b)(1) and (6) of the Federal Rules of

                                         3
Civil Procedure, alleging, inter alia, that it was immune from

this type of action under the discretionary function exception

to the Federal Tort Claims Act (AFTCA@) and that the court lacked

subject matter jurisdiction.                   The District filed a motion to

dismiss and/or for summary judgment, arguing, inter alia, that

under the District=s law it was immune from such suits.

       In response to the United States=s arguments, Ayres conceded

that    her    claims      for    negligent         design    and   construction       were

barred;       however,     she     contended         that     the    remaining      claims

regarding failure to place warning signs and/or guardrails were

not    barred        because     they   were       not   susceptible      to    a   policy

judgment nor did they involve the exercise of political, social,

or     economic       judgment.         And    in     response      to   the   District=s

argument, Ayres contended that, even though the District=s law

barring       most    of   her    claims      would      be   applicable       under   the

doctrine of lex loci delicti, Maryland=s public policy exception

applied and therefore the district court was required to use

Maryland law which allows such suits against local governments.

The district court granted the District=s and United States=s

motions, and Ayres timely appealed to this court.




                                               4
                                      II.

                                         A.

       On appeal, Ayres contends that the district court erred by

determining that the District=s law prohibiting suit against it

for negligent design and construction of its roadways did not

violate Maryland=s public policy exception to the doctrine of

lex loci delicti.       If we agree, then the district court should

have    applied   Maryland=s     law.          We     review    a   trial      court=s

determination of state law de novo.                  Roe v. Doe, 28 F.3d 404,

407 (4th Cir. 1994) (citing Salve Regina College v. Russell, 499

U.S. 225, 231-232 (1991)).

       Under the District=s law, the District may not be sued for

discretionary     functions    such      as    highway      planning    and    design

decisions.    Pace v. D.C., 498 A.2d 226, 228-229 (D.C. 1985).                     In

contrast,    Maryland     courts      have          held    that    counties      and

municipalities may be found liable for construction, maintenance

and control of their roads.             Montgomery County v. Vorhees, 86

Md. App. 294 (Md. Ct. Spec. App. 1991).                    Therefore, there is a

conflict    between   Maryland     law       and    the    District=s   law;    under

Maryland law, Ayres would be permitted to sue whereas under the

District=s own law, she would not.

       Maryland follows the traditional rule of lex loci delicti

in deciding conflict of law questions, Motor Club of America

Ins. Co. v. Hanifi, 145 F.3d 170 (4th Cir. 1998), and will

                                         5
therefore apply the substantive tort law of the jurisdiction

where the wrong occurred. Maryland courts may refuse to enforce

the   law    of   a    foreign      jurisdiction    when       that     law   violates

Maryland public policy.             Haunch v. Connor, 295 Md. 120 (1983).

Maryland public policy is Ano more and no less than what is

believed by the courts and the legislature to be in the best

interest of the citizens of [Maryland].@                  Linton v. Linton, 46

Md.   App.   660,     663   (1980).      Maryland   courts       have     found      that

public policy determinations are normally within the province of

the legislative branch.            Hanifi, 145 F.3d at 180.

      Maryland public policy is not violated when the foreign law

is merely different from Maryland law.                  Id.    Instead, the party

seeking to overrule the principle of lex loci delicti on public

policy grounds must carry the Aheavy burden@ of showing that the

foreign law violates a powerful public policy interest.                        Hanifi,

145 F.3d 170.         Maryland courts generally will not overrule the

principle    of     lex     loci    delicti   unless     there     is    a    contrary

Maryland statute.           Id.     Ayres sets forth no Maryland case or

statute that supports her position that honoring the District=s

governmental        immunity        against     suits      for        highway-related

negligence    would       violate    Maryland    public       policy    at    all,    let

alone a public policy of such stature that it should override

another jurisdiction=s view of the law regarding events in that

jurisdiction.         Because the injury to Mr. Ayres and the alleged

                                          6
tortious act occurred in the District, we conclude the district

court=s decision to apply the District=s law was correct.

                                             B.

        Next, Ayres contends that by dismissing all of her claims

the     district       court     erred    because       even    when     applying      the

District=s law it provides for a waiver of immunity to alleged

negligent maintenance of a roadway.                     Again, we review a trial

court=s determination of state law de novo.                    Roe, 28 F.3d at 407.

        While    we     agree    that    the       District    waived    its     immunity

against claims for negligent maintenance of a roadway, see Pace,

498 A.2d at 226, we affirm the district court=s decision to

dismiss because Ayres failed to put the District on notice of a

potential claim as is required pursuant to D.C. Code ' 12-309*.

Ayres       argues     that   the   police     report    from    the    scene     of   the

accident served as constructive notice of a potential claim.

However,        this     is     unpersuasive        because     the     police     report

indicated that the police officers saw possible driver error and

that they would investigate that possible cause.                           The police


        *
      D.C. Code § 12-309 states:        AAn action may not be
maintained against the District of Columbia for unliquidated
damages to person or property unless, within six months after
the injury or damage was sustained, the claimant, his agent, or
attorney has given notice in writing to the Mayor of the
District of Columbia of the approximate time, place, cause, and
circumstances of the injury or damage.     A report in writing by
the Metropolitan Police Department, in regular course of duty,
is a sufficient notice under this section.@


                                               7
officers never evinced intent to investigate any potential cause

relating to maintenance of I-295.                          The police report did not

reasonably suggest a basis for the District=s liability, and thus

under the District law, was insufficient to satisfy ' 12-309=s

notice requirement.           See Washington v. D.C., 429 A.2d 1362, 1366

(D.C.     1981)     (A...the     written        notice       or       police       report    must

disclose both the factual cause of the injury and a reasonable

basis   for       anticipating       legal     action       as    a    consequence.         Such

notice would suffice, therefore, if it either characterized the

injury and asserted the right to recovery, or without asserting

a claim described the injuring event with sufficient detail to

reveal,      in     itself,      a     basis        for    the        District=s      potential

liability.@).

                                               C.

       Finally, Ayres argues the district court erred in holding

that    the       United    States       was        immune       from       suit    under    the

discretionary function exception to the FTCA because the federal

regulations          for      safety         are          proprietary          rather       than

discretionary.        We agree with the district court that a decision

by the Secretary of Transportation to provide federal funds for

the construction of I-295 is a discretionary act that cannot

give rise to liability under FTCA.

       The    Federal      Aid       Highway    Act       directs       the    Secretary      to

Apromulgate       guidelines     designed           to    assure      ***    that    the    final

                                               8
decisions on [whether to fund a highway] project are made in the

best overall public interest, taking into consideration the need

for fast, safe and efficient transportation, public services,

and the costs of eliminating or minimizing,@ inter alia, the

project=s possible Aadverse economic, social, and environmental

effects.@      23 U.S.C. ' 109(h) (emphasis added).                   The Secretary

has    taken   these   (and   other)    factors    into       account    in    issuing

Aminimum criteria@ that a state or District highway project must

meet    to   receive    federal    funds,      while   retaining        the    agency=s

authority to create ad hoc exceptions to those criteria Awhere

conditions warrant.@       23 C.F.R. ' 625.3(f).

       Funding decisions under this scheme fall within the heart

of the discretionary function exception.                  As the Supreme Court

has explained, when ACongress has delegated the authority *** to

the Executive Branch to implement the general provisions of a

regulatory statute and to issue regulations to that end, there

is no doubt that planning-level decisions establishing programs

are protected by the discretionary function exception.@                         United

States v. Gaubert, 499 U.S. 315, 323 (1991).                      This Court has

recognized that Athis idea [is] equally applicable to the actions

of an agency charged with administering a public works project.@

Baum    v.   United    States,    986   F.2d    716,    722    (4th     Cir.    1993).

Congress=s delegation of authority here leaves Ano doubt@ that the

Department     of   Transportation=s     funding       decisions      are     shielded

                                         9
from   tort      liability.        As    this    Circuit=s      precedent     provides,

funding       decisions        meet     the      two      principal     criteria     of

discretionary function analysis, because they both involve A>an

element of judgment or choice=@ and are A>based on considerations

of public policy.=@        Suter v. United States, 441 F.3d 306, 310-11

(4th Cir. 2006) (quoting Berkovitz v. United States, 486 U.S.

531, 536-37 (1988)).

       Ayres     does   not    identify       Aany     mandatory    federal    statute,

regulation, or policy prescribing a specific course of action@

that the government should have followed in this case.                            Baum,

986 F.2d at 720.          Indeed, no mechanistic function could evaluate

and balance the various criteria that inform a highway-funding

decision; A[t]he sheer number of factors involved@ alone Asuggests

that Congress intended these decisions to be made as an exercise

of judgment and choice.@              Rothrock v. United States, 62 F.3d 196,

199 (4th Cir. 1995); see 23 U.S.C. '' 109(a), (h); 23 C.F.R.

'' 625.2(a), 625.3(a) (discussing factors).                     Safety is but one of

those many factors, and where federal officials Ahave more than

safety      in    mind@       in   making        a     particular     decision,     the

discretionary function exception bars a tort suit, such as this

one, in which plaintiffs suggest that the government should have

Aplace[d]      greater     emphasis      upon        safety.@      Bowman   v.   United

States, 823 F.2d at 1393, 1395 (4th Cir. 1987).



                                            10
      Furthermore, in expressly requiring that funding decisions

consider the Aeconomic, social, and environmental effects@ of a

particular project, see 23 U.S.C. ' 109(h), never could Congress

have more explicitly conveyed that such decisions are Agrounded

in social, economic, and political policy,@ Gaubert, 499 U.S. at

323     (internal   quotation     marks     omitted).      Ayres    mistakenly

suggests     that     the      Government     must      show    that       policy

considerations      informed    the   specific   decision      to   fund    I-295

(Pl. Br. 21).       The proper focus in the discretionary function

inquiry is not on a particular act, but instead Aon the nature of

the actions taken and on whether they are susceptible to policy

analysis.@    Suter, 441 F.3d at 311 (quoting Gaubert, 499 U.S. at

325).     The Anature@ of the decision here--evaluating whether or

not the funding is Ain the best overall public interest,@ 23

U.S.C. ' 109(h)--plainly implicates substantial policy concerns

and cannot be challenged under the FTCA.

      Lastly, Ayres requests that this Court certify questions of

law to the Maryland Court of Appeals.                We deny that request

because we conclude that Maryland law is clear and supports the

district court=s decision.




                                      11
                             III.

     For the foregoing reasons, we affirm the district court=s

decisions.

                                                      AFFIRMED




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