Slaughter, J.
Plaintiff seeks damages under Indiana’s False Claims and Whistleblower Protection Act for what she claims was a retaliatory discharge by her employer, the Indiana Department of Environmental Management. Plaintiff’s claim does not sound in tort but is based on the Department’s alleged violation of the Act. Indiana has not abrogated common-law sovereign immunity for non-tort claims premised on the violation of a statute. Esserman can thus proceed with her statutory claim only if the State has waived sovereign immunity concerning it. Applying the governing standard, we hold the legislature did not “clearly evince” an intention to waive sovereign immunity by authorizing whistleblower claims under the Act against a generic “employer” without expressly defining that term to include the State. We thus affirm the dismissal of Plaintiff’s complaint and remand with instructions.
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Indiana has not abrogated common-law sovereign immunity for non-tort claims premised on the violation of a statute. We hold the State has not waived sovereign immunity here because Section 8 of the Act—the whistleblower provision—does not clearly evince the legislature’s intention to subject the State to suit for violations of the Act. The trial court was right to dismiss Esserman’s claim under Trial Rule 12(B)(6). But the dismissal should have been without prejudice to her filing an amended complaint.
I. Although this Court has abrogated common-law sovereign immunity almost entirely for tort claims, we have not done so for non-tort claims based on a statute.
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In the aftermath of Campbell, our General Assembly in 1974 enacted the Indiana Tort Claims Act, which grants immunity from tort liability to many governmental entities, including the State. Since the Act’s passage, we have interpreted many of its provisions and defined the contours of when it immunizes a governmental entity from liability. But we have not strayed from our earlier, Campbell-era conclusions that what we were abrogating judicially was common-law governmental immunity for claims sounding in tort.
II. Because the State retains sovereign immunity for non-tort claims, the statute on which Esserman’s claim is based must “clearly evince” the State’s consent to suit.
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Campbell addressed a substantive question—what claims have been judicially abrogated? Pulaski, in contrast, addressed a procedural question—what statutory language must the legislature employ to establish its intention to waive immunity? We adhere to Pulaski’s determination that a statute does not waive immunity unless that intention is “clearly evince[d]”, creating a presumption against waiver of sovereign immunity absent statutory language to the contrary.
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These authorities, consistent with Pulaski, persuade us that we should not conclude lightly that our legislature has waived State immunity. These authorities also confirm not only the importance of the statute’s clarity, but also the need for an affirmative “expression” or “declaration” of the legislature’s intention to waive the State’s immunity. We will thus find a waiver of sovereign immunity only when the statute at issue contains an unequivocal affirmative statement that clearly evinces the legislature’s intention to subject the State to suit for the specific statutory claim asserted.
III. The False Claims and Whistleblower Protection Act does not clearly evince the State’s consent to be sued.
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As we have said, we will not presume the legislature intended the Act to apply to the State. The Act must clearly evince the legislature’s waiver of the State’s sovereign immunity by providing an unequivocal affirmative statement of the legislature’s intention to allow this statutory cause of action against the State. The Act does not do so here. The statute, while clearly stating that an employee may sue her employer, does not name the State (or one of its agencies or officials) as a permissible whistleblower defendant. Had the legislature intended to subject the State to whistleblower liability, it could have expressed that intention any number of ways. It could have said, for example, that state employees are eligible plaintiffs under Section 8; or defined “employer” to include the State; or authorized remedies that are unique to State employees to make clear they, too, are among those entitled to sue. This is not an exhaustive list, to be sure. But the legislature did none of these things—or anything else that would “clearly evince” or “unequivocally express” its intention to waive State immunity for whistleblower claims.
Though irrelevant to waiver, we note that aggrieved state employees are not without recourse under Indiana law. The State Personnel Act unambiguously affords a legal remedy to state-agency employees who face retaliatory discipline for having reported violations of state or 10 federal law. Id. §§ 4-15-10-1, -4. The remedy, which is not as generous as that provided by the False Claims and Whistleblower Protection Act, consists of thirty days’ back pay and reinstatement in the former position. But the personnel law provides a quicker review process. Id. § 4-15-2.2-42(e). See also Shoemaker v. Indiana State Police Dep’t., 62 N.E.3d 1242 (Ind. Ct. App. 2016). These tradeoffs are consistent with our conclusion that the legislature intended the personnel law to be the exclusive retaliatory-discharge remedy available to state employees. Of course, the legislature can always provide state employees with additional remedies. But to overcome sovereign immunity, it must “clearly evince” its intention to do so.
Conclusion
For these reasons, we affirm the dismissal of Esserman’s complaint under Rule 12(B)(6) and remand to the trial court with instructions to permit Esserman to file an amended complaint.
Rush, C.J., and Massa and Goff, JJ., concur.
David, J., dissents with separate opinion.
David, J., dissenting.
While I appreciate Justice Slaughter’s thoughtful majority opinion, I must respectfully dissent. In my view, the term “employer” is clear and unambiguous. I believe its plain meaning includes the State.
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