City of Boynton Beach, Florida v. Vestiguerne Pierre

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

CITY OF BOYNTON BEACH, FLORIDA, Appellant,

v.

VESTIGUERNE PIERRE,

Appellee.

No. 4D2026-0133

[September 16, 2026]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Carolyn Ruth Bell, Judge; L.T. Case No. 502024CA006020XXXAMB.

Kristen C. Diot and Robert J. Sniffen of Sniffen & Harmon, P.A., Tallahassee, and Robert J. Hauser of Sniffen & Harmon, P.A., West Palm Beach, for appellant.

Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for appellee.

LOTT, J.

Are non-economic damages (such as pain and suffering) available as a remedy under the Florida Public Whistleblower Act, Section 112.3187, Florida Statutes (2024)?

The First and Third Districts have held that non-economic damages are not available in public-sector whistleblower actions. They reasoned that Florida has not clearly and unequivocally waived its sovereign immunity for such damages. See Agency for Perss. with Disabilities v. Toal, 406 So. 3d 978 (Fla. 1st DCA 2025); Miami-Dade Cnty. v. Garavan, 434 So. 3d 492 (Fla. 3d DCA 2026).

We agree with the First and Third Districts. Thus, we reverse the circuit court’s denial of Appellant’s motion for summary judgment, to the extent

Appellant’s motion asserted that non-economic damages were barred by sovereign immunity. 1

The Florida Public Whistleblower Act prohibits state agencies and independent contractors from taking adverse actions against employees who make protected disclosures (such as disclosing information to an appropriate agency concerning waste or other improprieties in government).

Subsection (8) provides for “remedies” available to an aggrieved whistleblower: after exhausting administrative remedies, the whistleblower “may bring a civil action in any court of competent jurisdiction.” § 112.3187(8)(b), Fla. Stat. (2024).

Subsection (9) provides the relief available in such actions. It states, in full:

(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.

(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

1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(F)(iii) (2026); Broward Cnty. v. Manarite, 333 So. 3d 1130, 1137 (Fla. 4th DCA 2022) (explaining that jurisdiction under rule 9.130(a)(3)(F)(iii) turns on whether the denied motion asserted entitlement to sovereign immunity, not whether the trial court expressly addressed the issue).

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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), Fla. Stat. (2024).

That’s all the statute has to say about the cause of action and the relief potentially available in such a cause of action.

And that’s why non-economic (i.e., pain and suffering) damages are not available, because this statute is a waiver of sovereign immunity.

At common law, the state possessed immunity from suit as an aspect of its sovereignty. Sovereign immunity’s roots extend to medieval England. The doctrine flows from the concept that one could not sue the king in his own courts; hence the phrase “the king can do no wrong.” Pursuant to the Florida Constitution, however, the people of Florida vested the power to waive immunity in the Florida legislature at an early date. Art. IV, § 19, Fla. Const. (1868) (now Art. X, § 13, Fla. Const.). However, because waiver is an abrogation of the sovereignty of the state, courts have strictly construed any statute waiving immunity to protect the public purse.

Inasmuch as immunity of the state and its agencies is an aspect of sovereignty, the courts have consistently held that statutes purporting to waive the sovereign immunity must be clear and unequivocal. Waiver will not be reached as a product of inference or implication. The so-called “waiver of immunity statutes” are to be strictly construed. This is so for the obvious reason that the immunity of the sovereign is a part of the public policy of the state. It is enforced as a protection of the public against profligate encroachments on the public treasury.

As such, statutes purporting to waive sovereign immunity are strictly construed, and must be clear and unequivocal.

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Dep’t of Fin. Servs. v. Barnett, 262 So. 3d 750, 752 (Fla. 4th DCA 2018), approved, 303 So. 3d 508 (Fla. 2020) (cleaned up).

Simply put, section 112.3187 contains no “clear and unequivocal” waiver of sovereign immunity as to unenumerated categories of damages, including non-economic damages. To find such a waiver would require us to do so by implication, which is not permitted. Fla. Dep’t of Transp. v. Schwefringhaus, 188 So. 3d 840, 846 (Fla. 2016) (“Waiver cannot be found by inference or implication, and statutes waiving sovereign immunity must be strictly construed.” (citation modified)).

We recognize, to be sure, that “include” is generally an expansionary term that is best read as “includes, but is not limited to.” E.g., White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774, 781 (Fla. 2017) (collecting authority).

But just because the list is not (necessarily) limited does not mean that it is unlimited. What other imaginable types of damages did the Legislature subject Florida to by using the word “include”? Punitive damages? Consequential damages?

Canons of construction do not provide a clear answer to the limitations (or lack thereof) of the list in subsection (9), even though that list may be (on account of the word “include”) illustrative rather than exhaustive. Cf. § 112.3187(6), Fla. Stat. (2024) (using the express formulation “including, but not limited to,” elsewhere in the same statute).

We might expect the associated-words canon, noscitur a sociis, to be on point. See In re Piazza, 719 F.3d 1253, 1263 n.4 (11th Cir. 2013) (“When general language, such as ‘including,’ precedes specific examples, the appropriate canon of statutory construction is noscitur a sociis or the associated-words canon. Noscitur a sociis [is] the commonsense principle that statutory terms, ambiguous when considered alone, should be given related meaning when grouped together.” (citation modified) (emphasis in original)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 196 (2012) (“The most common effect of the canon is . . . to limit a general term to a subset of all the things or actions that it covers.”).

But it’s difficult to discern much of a common denominator for the six categories of relief available in subsection (9), which include four types of equitable/injunctive relief, monetary compensatory damages, and attorney’s fees. Cf. Reading Law at 196 (“For the associated-words canon to apply, the terms must be conjoined in such a way as to indicate that they have some quality in common.”). Are these all narrow, readily

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computable forms of relief? Are these more broadly an (arbitrary) subset of all usual forms of relief available in civil actions? Do these extend as far as punitive damages?

This lack of clarity gives us our answer. We construe sovereign immunity waivers narrowly in favor of the government and require clear and unequivocal statements. While we need not decide the precise bounds of potentially available damages under section 112.3187, the waiver of sovereign immunity as to non-economic damages is sufficiently unclear that we must find such damages unavailable, unless and until the Legislature clearly and unequivocally tells us otherwise. See Hardee Cnty. v. FINR II, Inc., 221 So. 3d 1162, 1166 (Fla. 2017) (“This Court construes waivers of sovereign immunity narrowly to protect public funds.”); Rabideau v. State, 409 So. 2d 1045, 1046 (Fla. 1982) (declining to extend the State’s liability beyond the statutory waiver because, had the Legislature intended to do so, “it would have expressly so provided”); cf. Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005) (The three principal policy considerations of sovereign immunity are “the preservation of the constitutional principle of separation of powers,” “the protection of the public treasury,” and “the maintenance of the orderly administration of government.”).

We accordingly align ourselves with the First and Third Districts on this question. See Toal, 406 So. 3d at 983 (“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.”); Garavan, 434 So. 3d at 498 (“Because the FPWA does not expressly and unequivocally waive sovereign immunity for non-economic damages, we find that such damages cannot be recovered against the County under the Act.”).

Here, the trial court denied Appellant’s motion for summary judgment. Appellant appealed the denial to the extent its motion asserted that non- economic damages were barred by sovereign immunity. For the reasons stated herein, such damages are barred by sovereign immunity. We accordingly reverse and remand for entry of partial summary judgment as to those damages. We lack jurisdiction to review, and therefore do not address, any other aspect of the trial court’s order denying Appellant’s motion for summary judgment.

Reversed and remanded.

GROSS and LEVINE, JJ., concur.

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Not final until disposition of timely-filed motion for rehearing.