Alexi Ortiz v. MICHAEL L. HIGGS, Director, State Department of Assessments & Taxation, officially…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-1102
ALEXI ORTIZ,
Plaintiff - Appellee,
v.
MICHAEL L. HIGGS, Director, State Department of Assessments & Taxation,
officially as both a state and local official, and/or individually,
Defendant - Appellant,
and
PRINCE GEORGE’S COUNTY, MARYLAND; STEPHEN J. MCGIBBON, in his
official capacity as Director, Prince George’s County Department of Finance,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Ajmel Ahsen Quereshi, Magistrate Judge. (8:21-cv-01169-AAQ)
Submitted: August 14, 2023 Decided: November 29, 2023
Before RICHARDSON and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Reversed and remanded with instructions by unpublished per curiam opinion.

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ON BRIEF: Anthony G. Brown, Attorney General, Ryan R. Dietrich, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellant. Michael A. Ostroff, MONTERO LAW GROUP, LLC, Silver
Spring, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Alexi Ortiz brought the underlying 42 U.S.C. § 1983 action against Prince George’s
County, Maryland (“PGC”); Michael L. Higgs, Director of the Maryland State Department
of Assessments and Taxation (“SDAT”), “acting in his capacity as a local official”; and
Stephen J. McGibbon, in his official capacity as Director of PGC’s Department of Finance.
Higgs filed a motion to dismiss or, in the alternative, for summary judgment, on Ortiz’s
claims against him, invoking Eleventh Amendment immunity. The magistrate judge found
that dismissal was unwarranted because Higgs was sued only in his official capacity as a
local official (“official local capacity claim”) and, thus, Higgs was not protected by
Eleventh Amendment immunity. The magistrate judge also denied, without prejudice,
Higgs’ motion to the extent Higgs sought summary judgment on the official local capacity
claim, but explained that the issue could be raised again after discovery was complete.
Higgs timely appealed the denial of his motion to dismiss. We reverse and remand with
instructions to dismiss for lack of jurisdiction.
This court may exercise jurisdiction only over final judgements and certain
interlocutory and collateral orders. 28 U.S.C. §§ 1291, 1292; Fed. R. Civ. P. 54(b); Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). A district court order
denying a state official’s motion to dismiss based on Eleventh Amendment immunity is
generally an immediately-appealable collateral order. See Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993). Thus, we have jurisdiction to
consider Higgs’ challenge to the magistrate judge’s decision rejecting Higgs’ invocation
of Eleventh Amendment immunity.

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It is well established that “an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of another state.” Edelman v.
Jordan, 415 U.S. 651, 663 (1974). This immunity also extends to state agencies and other
government entities properly characterized as “arm[s] of the State.” Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1997). And state officers acting in their
official capacity are likewise entitled to Eleventh Amendment immunity because “a suit
against a state official in his or her official capacity is not a suit against the official but
rather is a suit against the official’s office” and, “[a]s such, it is no different from a suit
against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
We conclude that the magistrate judge erred in holding that Higgs is not entitled to
Eleventh Amendment immunity. Higgs is the Director of the Maryland SDAT, which, as
he persuasively explains (and Ortiz does not dispute), is an arm of the state entitled to
sovereign immunity. See Ram Ditta v. Md. Nat’l Cap. Park & Plan. Comm’n, 822 F.2d
456, 457–58 (4th Cir. 1987) (identifying an arm of the state by considering “whether the
state treasury will be responsible for paying any judgement that might be awarded,”
“whether the entity exercises a significant degree of autonomy from the state, whether [the
entity] is involved with local versus statewide concerns, and how [the entity] is treated as
a matter of state law”); see also Marquardt v. Supervisor of Dep’t of Assessments and
Taxation, 195 F. Supp. 2d 706, 710 n.6 (D. Md. 2002) (holding that the SDAT is an arm
of the state). What Ortiz describes as “local” duties are really statewide duties that Higgs
carries out as a state officer. See, e.g., Md. Code, Tax-Prop. §§ 2-201, 2-202, 2-210. He
therefore is entitled to Eleventh Amendment immunity when sued in his official capacity.

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Based on the foregoing, we reverse and remand with instructions to dismiss for lack
of jurisdiction. We dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and argument would not aid the
decisional process.
REVERSED AND REMANDED WITH INSTRUCTIONS

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