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Brannon v. Finkelstein

United States Court of Appeals, Eleventh Circuit

June 18, 2014

MICHAEL P. BRANNON, PSY.D., individually; MICHAEL P. BRANNON, PSY.D., P.A., a Florida professional services corporation; and THE INSTITUTE FOR BEHAVIORAL SCIENCES AND THE LAW, LLC, a Florida limited liability company, Plaintiffs-Appellants,
v.
HOWARD FINKELSTEIN, in his official capacity as Broward County Public Defender, Defendant-Appellee

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:10-cv-61813-DLG.

For MICHAEL P. BRANNON, Psy. D., individually, MICHAEL P. BRANNON, PSY. D., P.A., a Florida professional services corporation, INSTITUTE FOR BEHAVIORAL SCIENCES AND THE LAW, LLC, a Florida limited liability company, Plaintiffs - Appellants: William Robert Amlong, Jennifer Daley, Karen Coolman Amlong, Rani Nair Bolen, Amlong & Amlong, PA, Fort Lauderdale, FL; Adam David Kemper, Greenspoon Marder, PA, Fort Lauderdale, FL.

For HOWARD FINKLESTEIN, in his official capacity as Broward County Public Defender, Defendant - Appellee: Alicia Laufer, Cory Stuart Laufer, Laufer & Laufer, PA, Boca Raton, FL; Jennifer Louise Ellerkamp, Kirwan Spellacy & Danner, PA, Fort Lauderdale, FL.

Before MARCUS, DUBINA, and WALKER,[*] Circuit Judges.

OPINION

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WALKER, Circuit Judge:

Plaintiff Michael P. Brannon filed suit in the district court alleging that defendant Howard Finkelstein reduced and ultimately terminated Brannon's consulting work as a forensic psychologist for the Broward County Public Defender's office in retaliation for Brannon's constitutionally protected testimony about a Florida state court judge. The United States District Court for the Southern District of Florida (Donald L. Graham, Judge ) granted summary judgment to the defendant. We VACATE in part, AFFIRM in part, and REMAND.

BACKGROUND

We are mindful that this case comes before us on an appeal from a grant of summary judgment in favor of the defendant and that the facts must be taken in the light most favorable to the plaintiff. See Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

Michael Brannon is a forensic psychologist and the sole owner of Michael P. Brannon, Psy.D., P.A., which owns fifty percent of the Institute for Behavioral Sciences and the Law, LLC (collectively, the " plaintiffs" ). The other fifty percent is owned by Brannon's business partner, Dr. Sherrie Bourg Carter. Until 2009, plaintiffs performed forensic psychology work for the office of the Broward County Public Defender, Howard Finkelstein.

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On December 6, 2007, Brannon testified before the Florida Judicial Qualifications Committee that was convened to investigate charges that the Hon. Cheryl Aleman had mistreated a criminal defendant appearing before her. Brannon testified in Judge Aleman's favor to the effect that she was never hostile to him during his appearances before her as a witness. The parties do not dispute that this testimony is protected speech under the First Amendment.

Although Finkelstein was not present during the Aleman hearing, he testified that he was " surprised" and " extremely disappointed" upon learning of Brannon's testimony. Shortly after the Aleman hearing, Finkelstein ran into Michael Gottlieb, a private attorney who worked with Brannon. Gottlieb testified that Finkelstein " expressed dissatisfaction" with Brannon's testifying on Judge Aleman's behalf because Finkelstein felt, as Gottlieb put it, that nobody from the defense community should " support such a person who was essentially a prosecutor in a robe." Gottlieb testified that " people thought of Judge Aleman as an evil witch," but he did not ascribe this statement to Finkelstein. According to Gottlieb, his conversation with Finkelstein was centered on " how could anybody testify on behalf of that evil witch."

Gottlieb " quickly" called Brannon to tell him what Finkelstein had said because, as Gottlieb put it, Gottlieb was concerned that Finkelstein was going to curtail Brannon's work. Brannon testified that after speaking to Gottlieb, he felt that he was " being or going to be discriminated against." After Brannon's testimony at the Aleman hearing, Finkelstein stopped exchanging pleasantries with Brannon and Bourg Carter.

Following his December 2007 testimony about Judge Aleman, Brannon's practice received less consulting work from the Public Defender's office. In fiscal year 2006-2007, plaintiffs were paid $608,757.50 by the Public Defender's office; in fiscal year 2007-2008, they were paid $390,212.00; and in 2008-2009, the first full fiscal year following Brannon's testimony at the Aleman hearing, plaintiffs were only paid $170,612.00. During this period, however, the Public Defender's office was sharply reducing its budget for hiring mental health experts. Over the four fiscal years running from July 2005 to June 2009, Brannon received roughly the same portion of the total budget spent by the Public Defender's office to hire mental health experts: 28.2%, 31.32%, 29.26%, and 30.35%, respectively.

Brannon also testified that starting in December 2007, following his testimony at the Aleman hearing, he had troubling conversations with at least six Assistant Public Defenders who in the past had routinely hired him. Although Brannon could not remember the exact words used, he testified that the substance of their remarks was that the Public Defender's office was angry at him and that, whereas previously any assistant Public Defender could hire him, now they could not hire him without approval from Finkelstein's top assistants. Brannon testified, however, that these Assistant Public Defenders were not told directly by Finkelstein that Brannon was being disfavored because of his testimony at the Aleman hearing. Additionally, Bourg Carter testified that Melisa McNeill, an Assistant Public Defender, said sometime " after the Aleman testimony" but " way before" the present lawsuit was filed in September 2010 that she had been told that she could not hire Bourg Carter or Brannon " because of what was going on with Dr. Brannon."

As of March 1, 2009, the Public Defender's office began using a wheel rotation system to hire ...


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