FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION

v.

JEFFREY HAHR

RAY, J.

The Florida Fish and Wildlife Conservation Commission (“the Commission”) asserts that the trial court erred in denying its motion to dismiss upon finding that the Commission had no right to sovereign immunity for private suits brought under section 92.57, Florida Statutes (2018), and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301–4333. We agree with the Commission and reverse.

I.

Hahr filed a four-count complaint against the Commission, claiming he was wrongfully terminated from his position of OPS Reserve Officer. He asserts that his termination was primarily in retaliation for providing unfavorable testimony in another lawsuit against the Commission brought by a fellow officer. Relevant to this appeal, Count I of Hahr’s amended complaint alleged a violation of section 92.57, Florida Statutes, which prohibits an employer from terminating an employee because of the nature of the employee’s testimony provided in a judicial proceeding under a subpoena. Count IV alleged retaliation under USERRA. The trial court denied the Commission’s motion to dismiss the counts based on sovereign immunity, and this appeal followed.

II.

The State and its subdivisions enjoy sovereign immunity from civil liability unless such immunity is waived by legislative enactment or constitutional amendment. See Art. X, § 13, Fla. Const. “[A]ny waiver of sovereign immunity must be clear and unequivocal,” and therefore “waiver will not be found as a product of inference or implication.” Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 472 (Fla. 2005). “In Florida, sovereign immunity is the rule, rather than the exception. . . .” Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984). “Whether a legislative enactment has waived the defense of sovereign immunity is a pure question of law reviewed de novo.” State, Dep’t of Elder Affs. v. Caldwell, 199 So. 3d 1107, 1109 (Fla. 1st DCA 2016) (citing Klonis v. State, Dep’t of Revenue, 766 So. 2d 1186, 1189 (Fla. 1st DCA 2000)).

A. Taking Hahr’s claims in reverse order, we turn first to Count IV, which alleges retaliation under USERRA. During the briefing period for this appeal, this Court held that sovereign immunity bars private actions brought under USERRA against a state agency. See Dep’t of Highway Safety & Motor Vehicles v. Hightower, 306 So. 3d 1193 (Fla. 1st DCA 2020). Because Hightower is directly on point, we reverse the trial court’s order on this count and remand for entry of an order granting the Commission’s motion to dismiss.

B.

We next consider whether the State has waived sovereign immunity for claims arising under section 92.57, Florida Statutes.

We hold that it has not, and thus the Commission is entitled to immunity from such claims.

Section 92.57, entitled “Termination of employment of witness prohibited,” states: A person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person’s testimony or because of absences from employment resulting from compliance with the subpoena. In any civil action arising out of a violation of this section, the court may award attorney’s fees and punitive damages to the person unlawfully dismissed, in addition to actual damages suffered by such person.

To begin, Hahr concedes—and we agree—that section 92.57 contains no independent waiver of sovereign immunity. Nothing in the language of the statute shows a clear expression by the Legislature that it intended to consent to suits against the State in this context.

Section 92.57 is unlike other statutory claims for retaliatory discharge where the waiver of sovereign immunity derives from the plain text of the statutes. See Bifulco v. Patient Bus. & Fin. Servs., Inc., 39 So. 3d 1255, 1258 (Fla. 2010) (explaining that the Legislature “chose to create liability [for workers’ compensation retaliation claims] through its specific and clear definition of ‘employer,’ which includes the State and its subdivisions”); Maggio v. Fla. Dep’t of Lab. & Emp. Sec., 899 So. 2d 1074, 1078 (Fla. 2005) (explaining that the Florida Civil Rights Act’s inclusion of the State as an “employer” subject to liability was an independent waiver of sovereign immunity); Fla. Dep’t of Educ. v. Garrison, 954 So. 2d 84, 86 (Fla. 1st DCA 2007) (explaining that the Florida public sector Whistle-blower’s Act is a “stand-alone statutory scheme” designed to provide a remedy against the State under certain conditions).

In short, those statutes specifically authorize a lawsuit against the State. That is not the case with section 92.57.

While section 92.57 does not contain its own waiver of sovereign immunity, Hahr contends that a section 92.57 claim falls within the sovereign immunity waiver of section 768.28, Florida Statutes (2018).

Section 768.28 provides a limited waiver of sovereign immunity for tort actions involving “injury or loss of property, personal injury, or death.” § 768.28(1), Fla. Stat. To support his argument, Hahr relies on Mason v. City of Miami Gardens, No. 14-23908-CV, 2015 WL 2152702 (S.D. Fla. May 6, 2015).

In Mason, the plaintiff sued his former employer for wrongful termination in violation of section 92.57. Id. at *1. Focusing on the type of damages pleaded, the district court concluded that because section 768.28 waives sovereign immunity for personal injury torts and the plaintiff was seeking damages under section 92.57 for “pain, suffering, and humiliation”—which is a form of personal injury—his claim would fall within the sovereign immunity waiver of section 768.28. Id. at *2. For its part, the Commission relies on a federal district court decision that reached the opposite conclusion. See Ashworth v. Glades Cnty. Bd. of Cnty. Comm’rs, No. 2:17-cv-577-FtM-99MRM, 2017 WL 6344209 (M.D. Fla. Dec. 12, 2017).

The district court in Ashworth focused on the statutory language of section 92.57 rather than the type of damages sought by the plaintiff. Id. at *2. Following the guidance of Florida state court decisions, the district court concluded that the plain language of section 92.57 did not include a clear and unequivocal waiver of sovereign immunity and there was no other indication that the Legislature intended such a waiver for section 92.57 claims. Id. In reaching its decision, the Ashworth court examined the Florida Supreme Court’s decision in Bifulco. In Bifulco, the supreme court held that the presuit notice requirements of section 768.28(6) do not apply to workers’ compensation retaliation claims against the State under section 440.205, Florida Statutes. 39 So. 3d at 1258. The court reasoned that the waiver of sovereign immunity for claims under section 440.205 derived from the plain text of the statute and not by reference to section 768.28. Id. It noted that “[w]hen the Legislature has intended particular statutory causes of action to be subject to the requirements of section 768.28(6), it has made its intent clear by enacting provisions explicitly stating that section 768.28 applies.” Id. The Ashworth court also observed that “the purpose of the enactment of Section 768.28 was to waive sovereign immunity for breaches of common law duties of care, limited to traditional torts, rather than causes of action created by statute.” 2017 WL 6344209, at *2 (citing Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985), and Hill v. Dept. of Corr., 513 So. 2d 129, 133 (Fla. 1987)).

It then discussed this Court’s decision in Caldwell, where we stated that section 768.28 “applies only to tort claims, not to statutory claims such as retaliatory discharge.” 199 So. 3d at 1110. Even though Caldwell involved a claim that allowed for the recovery of tort-like compensatory damages, including pain and suffering, this Court focused on the statutory language to determine whether the Legislature expressed a “clear and unequivocal waiver” of sovereign immunity. Id.

We are persuaded by the reasoning of Ashworth. There is no clear and unequivocal waiver of sovereign immunity in section 92.57 and the waiver provisions of section 768.28 do not apply.

The trial court therefore erred in denying the Commission’s immunity claim on this count.

* * *

For these reasons, we reverse the trial court’s order and remand for entry of an order granting the Commission’s motion to dismiss as to Counts I and IV.

REVERSED and REMANDED.

LEWIS, J., concurs; JAY, J., specially concurs with opinion.