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On February 26, 2025, the First District Court of Appeal (“DCA”) rendered its opinion in State v. Toal, 406 So. 3d 978 (Fla. 1st DCA 2025).[1] In the opinion, the court addressed the question of whether noneconomic damages are available under Florida’s public sector whistle-blower’s act (“the Act”) and determined that such damages are not available under the Act.[2] This holding directly conflicts with the Third District Court’s holding in Iglesias v. City of Hialeah, 305 So. 3d 20 (Fla. 3d DCA 2019), where the court held that that noneconomic damages “could be recovered because the Whistleblower’s Act did not expressly exclude them[.]”[3] Thus, there is currently a split between appellate courts in Florida, and it will be up to the Florida Supreme Court to provide a final answer on the issue (or for the Legislature to revise the Act to explicitly allow such damages). This post will discuss the Toal opinion and its conflict with Iglesias.

By way of background, the Act protects employees of state agencies and independent contractors of state agencies when they raise complaints related to “[a]ny violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare” or related to “[a]ny act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor” and face retaliation in response to their complaints if they meet certain reporting requirements.[4] In Toal, the court addressed the damages available under the statute.

The court in Toal provided few background facts, stating merely that “[a]fter Sally Toal was fired from her job with the Agency for Persons with Disabilities (‘Agency’), she sued her former employer alleging that she was subjected to whistleblower retaliation.”[5] As part of her requested relief (i.e., the damages she sought), “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.”[6] The lower court denied the Agency’s motion to dismiss her claims for noneconomic damages, relying on the Third District Court of Appeal’s decision in Iglesias.[7]  The Agency argued that noneconomic damages were barred by sovereign immunity, an argument not addressed in Iglesias.[8]

The First DCA began its analysis by reviewing the doctrine of sovereign immunity, which applies to suits against the government (here, an agency of the State of Florida).[9] As the court related, sovereign immunity “‘has been a fundamental tenet of Angle-American jurisprudence for centuries and is based on the principle that “the King can do no wrong.”’”[10] The court further noted that sovereign immunity can be waived, but that “‘any waiver of sovereign immunity must be clear and unequivocal,’ and thus ‘waiver will not be found as a product of inference or implication.’”[11] The question of whether a statute has waived sovereign immunity is a question of law, to be determined by the court.[12]

Turning to the statutory language, the court began by examining the relief provision of the whistleblower act.[13] The Act provides:

(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 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.[14]

The court noted, “Noneconomic damages are not specified as a form of relief under the Whistleblower’s Act, full stop.”[15]

After reviewing the statutory text, the court turned to other statutory provisions related to employment law. For instance, the Florida Civil Rights Act and the private sector whistleblower’s act both provide (explicitly and implicitly) for noneconomic damages.[16] According to the court, the fact that the Legislature did not include language related to noneconomic damages in the Act “shows that noneconomic damages cannot be recovered under the public sector act.”[17]

In reaching its decision that noneconomic damages are not available under the Act, the court distinguished the Third DCA’s opinion in Iglesias. There, the court held that “[t]he [Act’s] language is a floor, rather than a ceiling, on the types of relief that a party can seek.”[18] The court further provided, “The [Act] mandates that an award include the remedies explicitly identified within the statute, but does not expressly exclude other recoverable damages, thereby allowing other forms of relief as may be appropriate under applicable law.” In Toal, the First DCA noted that the Third DCA did not mention sovereign immunity, and there is no indication that the argument was raised by the City.[19] According to the First DCA, Iglesias “is not persuasive authority and cannot support the trial court’s decision.”[20]

In conclusion, the First DCA held that the “Legislature delineated the precise forms of relief that must be awarded to a prevailing plaintiff [under the Act]. And it chose not to include uncapped noneconomic damages within this comprehensive framework.”[21] The court held that even if the statute were ambiguous, the Legislature did not clearly waive sovereign immunity.[22] The court thus reversed the order at issue and remanded the case to the trial court for further proceedings.[23]

We will monitor whether the Florida Supreme Court accepts the case to resolve the split between Iglesias and Toal and will provide an update once it becomes available. Until then, litigants can certainly argue that noneconomic damages are available under the Act and rely upon Iglesias.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available on the First DCA’s website at https://1dca.flcourts.gov/content/download/2447904/opinion/Opinion_2024-1651.pdf (last visited June 29, 2025). For purposes of this blog post, the page numbers referenced will be to the version posted on the court’s website.

[2] Toal, at *1. Florida’s Public Sector Whistle-blower’s Act can be found at section 112.3187, Florida Statutes (2025).

[3] Toal, at *2.

[4] § 112.3187(5)(a)-(b), Fla. Stat. (2025).

[5] Toal, at *1.

[6] Id., at *1-2.

[7] Id., at *2.

[8] Id.

[9] Id.

[10] Id. (quoting Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005)).

[11] Id., at *3 (quoting Am. Home Assurance Co., 908 So. 2d at 472 (other citations omitted)).

[12] Id.

[13] Id.

[14] § 112.3187(9), Fla. Stat. (2025).

[15] Toal, at *4.

[16] Id.

[17] Id.

[18] Iglesias v. City of Hialeah, 305 So. 3d 20, 22 (Fla. 3d DCA 2019).

[19] Toal, at *6.

[20] Id. The First DCA also challenged the Third DCA’s reliance on a 2008 First DCA opinion where sovereign immunity was not addressed and the court made comments regarding damages only in passing. Id.

[21] Id., at *7.

[22] Id.

[23] Id.

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