State of Florida, Agency for Persons With Disabilities v. Sally Toal

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2024-1651

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STATE OF FLORIDA, AGENCY FOR

PERSONS WITH DISABILITIES,

Appellant,

v.

SALLY TOAL,

Appellee.

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On appeal from the Circuit Court for Leon County.

Angela C. Dempsey, Judge.

February 26, 2025

RAY, J.

The Agency for Persons with Disabilities appeals a nonfinal

order in which the trial court found that noneconomic damages are

available as a form of relief under the public sector Whistleblower’s

Act. Because the Whistleblower’s Act does not clearly and

unequivocally waive sovereign immunity to authorize the recovery

of such damages, we reverse.

I

After Sally Toal was fired from her job with the Agency for

Persons with Disabilities, she sued her former employer alleging

that she was subjected to whistleblower retaliation. As part of her

requested relief, she claimed entitlement to compensation for

noneconomic damages, including emotional pain and suffering,

loss of the capacity for the enjoyment of life, and other intangible

losses.

The Agency moved to dismiss her claim for noneconomic

damages, arguing that they were barred by sovereign immunity.

As it does on appeal, the Agency argued that the Whistleblower’s

Act does not contain an express, unequivocal waiver of immunity

authorizing the award of noneconomic damages, nor are such

damages included in the statute’s enumerated categories of relief.

Although the Third District Court of Appeal held in Iglesias v. City

of Hialeah, 305 So. 3d 20 (Fla. 3d DCA 2019), that such damages

could be recovered because the Whistleblower’s Act did not

expressly exclude them, the Agency argued that the opinion did

not address sovereign immunity or reconcile its holding with the

well-established principle that a waiver of immunity cannot be

found by inference or implication.

But the trial court relied on Iglesias to deny the Agency’s

motion, and the Agency has appealed. We have jurisdiction. See

Fla. R. App. P. 9.130(a)(3)(F)(iii).

II

The common law doctrine of sovereign immunity, which

provides that a sovereign cannot be sued without its consent, “has

been a fundamental tenet of Anglo-American jurisprudence for

centuries and is based on the principle that ‘the King can do no

wrong.’ ” Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp.,

908 So. 2d 459, 471 (Fla. 2005). This doctrine is the law of Florida

through the Legislature’s adoption of the English common law. Id.

(citing § 2.01, Fla. Stat.).

As the Florida Supreme Court has explained, there are

several policy reasons supporting sovereign immunity, including

(1) “the preservation of the constitutional principle of separation of

powers”; (2) “the protection of the public treasury”; and (3) “the

maintenance of the orderly administration of government.” Id.

(internal citations omitted). Suffice it to say, “sovereign immunity

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is the rule, rather than the exception.” Pan-Am Tobacco Corp. v.

Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984).

Despite the broad protections of the doctrine, the people,

through their elected representatives, can consent to suit by

waiving the state’s sovereign immunity. See art. X, § 13, Fla.

Const. (“Provision may be made by general law for bringing suit

against the state as to all liabilities now existing or hereafter

originating.”). But given the interests at stake, “any waiver of

sovereign immunity must be clear and unequivocal,” and thus

“waiver will not be found as a product of inference or implication.”

Am. Home Assurance Co., 908 So. 2d at 472; see also Spangler v.

Fla. State Tpk. Auth., 106 So. 2d 421, 424 (Fla. 1958) (explaining

that “the immunity of the sovereign is a part of the public policy of

the state” and “enforced as a protection of the public against

profligate encroachments on the public treasury”).

Against this backdrop, we turn our attention to the public

sector Whistleblower’s Act, sections 112.3187–112.31895, Florida

Statutes (2021). “Whether a legislative enactment has waived the

defense of sovereign immunity is a pure question of law reviewed

de novo.” Fla. Fish & Wildlife Conservation Comm’n v. Hahr, 326

So. 3d 1165, 1167 (Fla. 1st DCA 2021) (quoting State, Dep’t of Elder

Affs. v. Caldwell, 199 So. 3d 1107, 1109 (Fla. 1st DCA 2016)).

A

The Whistleblower’s Act prohibits state agencies from taking

adverse personnel action against employees in retaliation for

disclosing information protected by the Act. § 112.3187(4)(a), Fla.

Stat. There are several prescribed forms of relief:

(9) Relief.—In any action brought under this section, the

relief must include the following:

(a) Reinstatement of the employee to the same position

held before the adverse action was commenced, or to an

equivalent position or reasonable front pay as alternative

relief.

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(b) Reinstatement of the employee’s full fringe benefits

and seniority rights, as appropriate.

(c) Compensation, if appropriate, for lost wages, benefits,

or other lost remuneration caused by the adverse action.

(d) Payment of reasonable costs, including attorney’s

fees, to a substantially prevailing employee, or to the

prevailing employer if the employee filed a frivolous

action in bad faith.

(e) Issuance of an injunction, if appropriate, by a court of

competent jurisdiction.

(f) Temporary reinstatement to the employee’s former

position or to an equivalent position, pending the final

outcome on the complaint, if an employee complains of

being discharged in retaliation for a protected disclosure

and if a court of competent jurisdiction or the Florida

Commission on Human Relations, as applicable under s.

112.31895, determines that the disclosure was not made

in bad faith or for a wrongful purpose or occurred after an

agency’s initiation of a personnel action against the

employee which includes documentation of the

employee’s violation of a disciplinary standard or

performance deficiency. This paragraph does not apply to

an employee of a municipality.

§ 112.3187(9)(a)–(f), Fla. Stat.

Noneconomic damages are not specified as a form of relief

under the Whistleblower’s Act, full stop. Toal does not argue

otherwise.

To be sure, the statute addresses compensation for objectively

verifiable monetary losses (read: economic damages) but does not

mention subjective, non-monetary losses (read: noneconomic

damages). Id. at (c). Instead, when describing compensation for

“other lost remuneration caused by the adverse [employment]

action,” it first lists wages and benefits—things of value routinely

payable or provided to an employee as part of the employment

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relationship. That does not include or even suggest compensation

for noneconomic damages such as pain, suffering, and emotional

distress. See In re Advisory Op. to Att’y Gen. re Use of Marijuana

for Certain Med. Conditions, 132 So. 3d 786, 801 (Fla. 2014)

(explaining that when general words in a statute follow specific

words or phrases, the meaning of the general words are construed

as being restricted to include only those of the same kind or class

of those specifically mentioned); Sun Coast Int’l Inc. v. Dep’t of Bus.

Regul., Div. of Fla. Land Sales, Condo. & Mobile Homes, 596 So.

2d 1118, 1121–22 (Fla. 1st DCA 1992) (applying the maxim of

ejusdem generis to conclude that general statutory language

authorizing agency action was limited by the specific language

immediately preceding it, and rejecting an argument that the

general language implied the agency could provide broader relief).

B

By contrast, other employment laws show that when the

Legislature intends to include noneconomic damages as a form of

relief, it expressly says so. See, e.g., § 760.11(5), Fla. Stat.

(authorizing the award of “damages for mental anguish, loss of

dignity, and any other intangible injuries, and punitive damages”

in the Florida Civil Rights Act); § 112.0455(15)(a)2., Fla. Stat.

(authorizing an award of “noneconomic damages provided that

damages shall be limited to the recovery of damages directly

resulting from injury or loss caused by each violation of this

section” in the Drug-Free Workplace Act, which applies to state

agencies and their employees).

Tellingly, Florida’s private sector Whistleblower’s Act

authorizes additional relief in the form of “[a]ny other

compensatory damages allowable at law,” which has been found to

include noneconomic damages. § 448.103(2)(e), Fla. Stat.; see Aery

v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 913 (Fla. 4th

DCA 2013) (finding the phrase “any other compensatory damages

allowable at law” authorized noneconomic compensatory damages

under the private sector act). But the Legislature chose not to

include similar language in the public sector version. That

omission further shows that noneconomic damages cannot be

recovered under the public sector act. “In the past, we have pointed

to language in other statutes to show that the Legislature ‘knows

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how to’ accomplish what it has omitted in the statute in question.”

Cason v. Fla. Dep’t of Mgmt. Servs., 944 So. 2d 306, 315 (Fla. 2006)

(quoting Rollins v. Pizzarelli, 761 So. 2d 294, 298 (2000))

(reasoning that the omission of a provision classifying the State as

a taxpayer from the statute in question was “especially significant

in light of the overriding principle that any wavier of the State’s

immunity from ad valorem taxation must be clear and direct”).

C

Nevertheless, the trial court believed it was bound to follow

Iglesias v. City of Hialeah, 305 So. 3d 20 (Fla. 3d DCA 2019), which

held that the Whistleblower Act’s “language is a floor, rather than

a ceiling,” on the types of relief a party may seek. Id. at 22. Because

the statute dictates that relief “must include” rather than “must

only include” the enumerated categories of relief, the appellate

court concluded that an employee could recover noneconomic

damages. Id.

However, Iglesias does not mention sovereign immunity and

there is no indication in the opinion that the issue was even raised

as a defense in that case. Instead, it reasoned that because the

statute “does not expressly exclude other recoverable damages,”

then other forms of relief may be available. Id. But as we have

already explained, a waiver of sovereign immunity cannot be

inferred or implied, Am. Home Assurance Co., 908 So. 2d at 472,

and “[n]o decision is authority on any question not raised and

considered, although it may be involved in the facts of the case.”

State ex rel. Helseth v. Du Bose, 128 So. 4, 6 (Fla. 1930). For the

same reasons, Iglesias’s reliance on O’Neal v. Florida A&M

University ex rel. Board of Trustees for Florida A&M University,

989 So. 2d 6 (Fla. 1st DCA 2008), is also unavailing. That decision

addressed only the right to a jury trial under the Whistleblower’s

Act, never mentioned sovereign immunity, and its comments about

forms of compensatory relief are dicta. Id. at 14 n.5 (reasoning that

the Act does not preclude compensatory relief other than those

enumerated by the text). Thus, Iglesias is not persuasive authority

on this issue and cannot support the trial court’s decision.

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D

One final point is worth noting. We have considered Toal’s

argument that, as a remedial statute, the Whistleblower’s Act

should be interpreted liberally in her favor. But this so-called

remedial purpose canon is of “dubious value.” Regions Bank v.

Legal Outsource PA, 936 F.3d 1184, 1195 (11th Cir. 2019); see also

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts § 64, at 364–67 (addressing “[t]he

false notion that remedial statutes should be liberally construed”

and criticizing the canon as “needlessly invit[ing] judicial

lawmaking”). Indeed, “[e]very statute proposes, not only to achieve

certain ends, but also to achieve them by particular means—and

there is often a considerable legislative battle over what those

means ought to be.” Dir., Off. of Workers’ Comp. Programs, Dep’t

of Lab. v. Newport News Shipbuilding & Dry Dock Co., 514 U.S.

122, 136 (1995).

At any rate, we do not employ scale-tipping cannons in the

absence of statutory ambiguity. Here, there is none. The

Legislature delineated the precise forms of relief that must be

awarded to a prevailing plaintiff. And it chose not to include

uncapped noneconomic damages within this comprehensive

framework.

Even if ambiguity were hypothetically acknowledged, there

would be no valid waiver of sovereign immunity. Sovereign

immunity can be waived only through statutory language that is

clear and unequivocal, as it is “the province of the political

branches, not the courts, to weigh the costs and benefits of

exposing the . . . government to civil litigation.” Robinson v. U.S.

Dep’t of Educ., 917 F.3d 799, 801 (4th Cir. 2019).

III

Because the Whistleblower’s Act does not clearly and

unequivocally waive sovereign immunity to authorize the recovery

of noneconomic damages, the trial court erred by denying the

Agency’s motion to dismiss Toal’s claim for such relief. We thus

reverse the order under review and remand for further

proceedings.

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B.L. THOMAS and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Miriam R. Coles and Dawn M. McMahon of Henry Buchanan, P.A.,

Tallahassee, for Appellant.

Marie A. Mattox and Ashley N. Richardson of Marie A. Mattox,

P.A., Tallahassee, for Appellee.

Richard E. Johnson of the Law Office of Richard E. Johnson,

Tallahassee, for Amicus Curiae National Employment Lawyers

Association, Florida Chapter.

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