1
2
3 UNITED STATES OF AMERICA
4 DEPARTMENT OF HOMELAND SECURITY
5 U.S. DEPARTMENT OF TRANSPORTATION
6 UNITED STATES COAST GUARD
7
8 HON. PARLEN L. McKENNA, JUDGE
9
10
11 UNITED STATES COAST GUARD,
12 Complainant,
vs. No. CG S&R 03-0166
13 USCG Case No. MISLE
ERIC NORMAN SHINE, 1671475
14
Defendants.
15
16
17 VOLUME II
18 REPORTER'S TRANSCRIPT RE PROCEEDINGS
19 Wednesday, August 27, 2003
20
21
22
23 REPORTED BY: Judy M. Skidmore, CSR No. 8479
24
25
139
1 UNITED STATES OF AMERICA
2 DEPARTMENT OF HOMELAND SECURITY
3 U.S. DEPARTMENT OF TRANSPORTATION
4 UNITED STATES COAST GUARD
5
6 HON. PARLEN L. McKENNA, JUDGE
7
8 UNITED STATES COAST GUARD,
9 Complainant,
vs. No. CG S&R 03-0166
10 USCG Case No. MISLE
ERIC NORMAN SHINE, 1671475
11
Defendants.
12
13
14 APPEARANCES OF COUNSEL:
15
16 For Complainant UNITED STATES COAST GUARD:
17 LT. BRIAN HILL
18
For Respondent ERIC NORMAN SHINE:
19
FORGIE, JACOBS & LEONARD
20 BY: PETER S. FORGIE
Attorney at Law
21 4165 East Thousand Oaks Boulevard
Suite 355
22 Westlake Village, California 91362
23 Also Present:
24 NICOLE LICHTENSTEIN
ERIC NORMAN SHINE
25
140
1 WEDNESDAY, AUGUST 27, 2003, SAN DIEGO, CALIFORNIA
2 VOLUME II
3 9:25 A.M.
4 * * *
5
6 HON. PARLEN L. McKENNA: Back on the record.
7 Good morning, everyone.
8 MR. FORGIE: Good morning.
9 ERIC SHINE: Good morning, your Honor.
10 LT. HILL: Good morning.
11 HON. PARLEN L. McKENNA: A couple of
12 housekeeping matters before we proceed.
13 I would like to just make it crystal clear for
14 the record that my previous orders on the medical
15 examination are extant and were not rescinded. The
16 purpose of this settlement conference and prehearing
17 was to try and work out a framework that would be
18 acceptable to all parties, as to first establishing the
19 extent of the evidence, both nonmedical and medical,
20 for the good cause, if you will, to require the holding
21 of an independent psychological exam.
22 It's my position that Section 1313 only
23 requires, that upon a finding that would be medical
24 psychological condition, if I find that that is an
25 issue, then I may order an independent psychological
141
1 exam. Pursuant to 1313, I so find.
2 Now, in Mr. Forgie's defense, he was
3 attempting to work out a compromise that would be least
4 objectionable to his client. He knew instantaneously
5 that his client would have a problem with a Navy
6 doctor, and he expressed that during the conference
7 call between the parties.
8 In order to ameliorate that concern, the Coast
9 Guard was agreeable to using another medical provider,
10 and Mr. Forgie gave Lt. Hill some latitude to go look
11 around and explained what he had found. And
12 Mr. Forgie, I guess, felt that that was better than the
13 Navy doctor. And so I left with the clear impression
14 that it was agreed to by the parties. And I put that
15 in my order.
16 Now, under 5 -- USC 554, Mr. Forgie is a
17 party. He represents -- as the lawyer of Mr. Shine, he
18 stands in his step. He represents him. Now, I am
19 going to request that Mr. Shine reconsider his position
20 in this matter regarding the independent medical exam.
21 While I'm not going to rescind my previous orders, I
22 will allow Mr. Shine the last opportunity to agree that
23 if I spend my time and go out and go to the
24 universities and try and pick a psychiatrist to examine
25 him, I will do the due diligence and ask the questions
142
1 as to conflicts. And Mr. Forgie can give me a list, if
2 he wants to, to make sure, then I would have to have an
3 agreement, albeit maintaining the initial objection to
4 having to do it in the first place; but since I've
5 ordered it, then Mr. Shine would have to inform me that
6 he would agree to it.
7 If he would do that, then I would go out and
8 find an independent, nonbiased, nonconflicted
9 psychiatrist to do the evaluation. And there's one
10 proviso, that the government will put together a
11 package of what they want the psychiatrist to review.
12 Mr. Forgie will put together his package of items that
13 he believes counters what the government has put in.
14 And this would include medicals and statements that
15 they intend to put into evidence. Some items we can
16 discuss as to whether they -- their probative value is
17 outweighed by the prejudicial value of the document.
18 And then Mr. Shine would have the opportunity to, in
19 discussing with the psychiatrist, his disagreement with
20 anything that might be contained therein.
21 So I'm holding that open to you until we go
22 off the record today. And at that time, my offer will
23 lapse.
24 ERIC SHINE: Your Honor --
25 HON. PARLEN L. McKENNA: Yes, sir.
143
1 ERIC SHINE: -- may I address that?
2 HON. PARLEN L. McKENNA: Yes, you may. You
3 might want to wait a little while and think about it.
4 ERIC SHINE: I heard you, but I would like to
5 address some of my concerns in that regard, as far
6 as -- and this would have been some of the issues for
7 settlement conference or anything else, whether it's on
8 the record or off or ADR.
9 The issue of -- first and foremost, any
10 records would be prejudicial to who I am today, because
11 even as to the regs, it's as to any precedence or
12 whatever, that any type of mental or medical
13 incapability or incompetence has to be exhibited in the
14 proceedings, that even if it's a doctor's report, it
15 has to be timely, not from two years ago, and that it
16 has to show within the hearing that there's an issue,
17 that this is not -- this was not like a one-time
18 because the guy's father died or other events that we
19 all go through, heaped on top of labor racketeering and
20 other incidences or other -- I've seen nothing to that
21 effect.
22 Everything that the Coast Guard has presented
23 is years old at best. Some of it they're trying to
24 bring in is from 1984, my drug and alcohol rehab
25 records that they're trying to get a hold of, for
144
1 whatever reason, even though I went to a Federal
2 academy, had NIS investigate my background and
3 everything else, now the Coast Guard wants to reopen
4 all that and do a better job of reinvestigating that, I
5 guess. To see a doctor without any records whatsoever
6 and to see who I am and what's going on and my state of
7 mind now is most appropriate, and --
8 HON. PARLEN L. McKENNA: Well, there has to be
9 a frame of reference, and you'll be able to discuss --
10 you'll have copies of everything that was tendered to
11 the psychiatrist, and you'll have an opportunity to
12 discuss those issues, and I would think that two or
13 three two-hour --
14 ERIC SHINE: Wouldn't that be more up to the
15 doctor himself or herself --
16 HON. PARLEN L. McKENNA: I would think so.
17 ERIC SHINE: -- to determine --
18 HON. PARLEN L. McKENNA: I would think so, but
19 we need a floor.
20 ERIC SHINE: But again, it would be the
21 professional floor from the doctor and not anything
22 imposed upon by the court. I'm not imposing it upon,
23 though. The Coast Guard shouldn't -- it should be up
24 to the professional that you're going to bring in on
25 this who's going to say, "This is huge. I can't digest
145
1 all this, prepare myself and meet with the client and
2 do this in 24 hours," or you know, whatever. It's
3 obviously going to take several weeks.
4 HON. PARLEN L. McKENNA: No. I'm talking
5 about sessions now.
6 ERIC SHINE: Well, that's what I'm saying.
7 But it may take, you know, four or five, six sessions.
8 I don't know.
9 HON. PARLEN L. McKENNA: I don't, either.
10 ERIC SHINE: Right. But it should be up to
11 the doctor and not the court to say, "You have two
12 three-hour sessions to do your best job possible,
13 because this guys's life is hanging in the balance."
14 HON. PARLEN L. McKENNA: Well, since the
15 government would not be paying for it, I would not be
16 placing a ceiling as to the amount of time that you
17 would have to spend with the psychiatrist. I would be
18 placing a floor. Although I'm not a medical
19 professional, there has to be some --
20 ERIC SHINE: But that could be --
21 HON. PARLEN L. McKENNA: -- minimum that I
22 would want to see so that the psychiatrist would be
23 able to get a full idea of what's going on here.
24 ERIC SHINE: Granted.
25 But again, even to the matter of timeliness or
146
1 judicial expediency, I've already agreed, and I have
2 not withdrawn my stipulation that I would not use my
3 license until these matters are concluded. So in --
4 towards the end of justice, which I believe is what
5 anyone -- even in these administrative proceedings,
6 whether it's the Coast Guard or your Honor, should be
7 looking toward, the doctor, whomever it is, should be
8 afforded whatever time is necessary to do an -- I'm not
9 saying -- I'm not trying to stretch anything out. It's
10 up to the doctor.
11 HON. PARLEN L. McKENNA: Mr. Shine, are
12 you -- you're a mariner, I take it, right?
13 ERIC SHINE: Yes, your Honor, obviously.
14 HON. PARLEN L. McKENNA: Have you heard the
15 term "two ships passing in the night"?
16 ERIC SHINE: And your --
17 HON. PARLEN L. McKENNA: My point is, why are
18 we having that discussion? Why aren't you just saying
19 that you would like to have a full medical exam by
20 whatever doctor would evaluate you?
21 ERIC SHINE: Even as to timeliness --
22 HON. PARLEN L. McKENNA: I'm not getting into
23 timeliness. I'm --
24 ERIC SHINE: You brought it up yourself.
25 HON. PARLEN L. McKENNA: I'm saying there has
147
1 to be a minimum.
2 ERIC SHINE: A minimum what, though?
3 HON. PARLEN L. McKENNA: A minimum of -- I
4 would want to see the doctor at least have four to six
5 hours of sessions with you.
6 ERIC SHINE: Oh. You're saying as bare
7 minimum? I thought you were talking about like --
8 HON. PARLEN L. McKENNA: That's what a floor
9 is.
10 ERIC SHINE: No. I thought you were talking
11 about -- this goes to communication.
12 Even throughout this whole process, is, at
13 some point, I'm hearing you're talking about, boom,
14 getting it back and getting the report here, that
15 there's a bare minimum; no, he only has so many hours
16 for this, and these are the parameters you have to get
17 it back.
18 HON. PARLEN L. McKENNA: Maybe you're not
19 listening to me.
20 ERIC SHINE: I haven't pressed the issues of
21 expediency. I'm trying to defend myself.
22 HON. PARLEN L. McKENNA: I'm not talking about
23 expediency.
24 ERIC SHINE: But you have all up until this
25 point.
148
1 HON. PARLEN L. McKENNA: I never used that
2 word.
3 ERIC SHINE: I think, in some of the
4 initial -- anyways, I don't want to get into an
5 argument about what has come before to muddy what is
6 going on right now.
7 As to the issues of a medical doctor, I, of
8 course, object strongly that it is a violation of
9 rights and privileges, both privacy act and the
10 therapist/patient privilege. There's been nothing --
11 there's been no case shown as an act of incompetence to
12 say, "He needs to go to the doctor because he has done
13 this."
14 They've brought in excerpts, not full letters
15 or anything, that have been taken out of context. We
16 haven't had a chance to rebut or refute with evidence
17 anything that's been proffered by the Coast Guard,
18 which, in all the case precedence I've seen, is the
19 case, that they're allowed to refute, rebut any
20 evidence presented by the Coast Guard.
21 I think one of the cases -- I don't know if it
22 was Matson where the guy -- they had a doctor's report
23 where he had schizophrenia. They brought the doctor's
24 report in. It was never argued as to how it came in,
25 where it came from. There's a lot of other parole
149
1 evidence that the individual did not --
2 HON. PARLEN L. McKENNA: Let's get back on
3 track.
4 ERIC SHINE: Well, I'm trying to bring up
5 issues, and you're not allowing me to bring up very --
6 my own concerns about -- like even Dr. Erlich. And
7 I've said, because there's miscommunication by my
8 counsel and the court, no matter what happened, whether
9 the court called him, set up an informal or ex parte
10 motion or movement by the court, I don't know. I have
11 no idea how that all came about. I'm trying to
12 address --
13 HON. PARLEN L. McKENNA: It's not ex parte
14 when both parties are there.
15 ERIC SHINE: No; because it's supposed to be
16 judicially noticed and calendared, and I'm supposed to
17 have the opportunity to be there.
18 HON. PARLEN L. McKENNA: That's your position.
19 ERIC SHINE: Right. You called him out of the
20 blue, your Honor.
21 HON. PARLEN L. McKENNA: I disagree. He is a
22 grown individual who's representing you. And he has
23 the right to say, "I've been instructed by my client
24 not to talk to you without him present." He did not do
25 that.
150
1 ERIC SHINE: And I am telling the court --
2 HON. PARLEN L. McKENNA: And he never -- and
3 he never objected to having a discussion on certain
4 issues and found it to be very helpful. So --
5 ERIC SHINE: If he stipulated to something,
6 your Honor --
7 HON. PARLEN L. McKENNA: Now he understands
8 that you don't want that to be done. I understand that
9 you don't want that to be done. And I will give you a
10 certain amount of latitude in that regard.
11 ERIC SHINE: And so I'm trying to correct the
12 issue of Dr. Erlich, who I had no -- as far as his
13 stipulation --
14 HON. PARLEN L. McKENNA: That's -- let's move
15 beyond Erlich. I am trying to suggest to you that I am
16 willing to de novo the whole process if you will give
17 me an affirmation on the record that you will go to the
18 doctor that I pick.
19 ERIC SHINE: Could you explain what -- I
20 know -- what de novo is, because I'm --
21 HON. PARLEN L. McKENNA: Start over.
22 ERIC SHINE: The trial or whatever?
23 HON. PARLEN L. McKENNA: No. I'm going to
24 start the process of picking a psychiatrist. I'm going
25 to make sure that that psychiatrist is not
151
1 conflicted --
2 ERIC SHINE: Right.
3 HON. PARLEN L. McKENNA: -- in any way.
4 And then you are going to agree that you will
5 go to that medical provider for at least six hours of
6 sessions; and if you want to go more, that's fine, and
7 that there would be the government's background
8 information and your background information. And then
9 you'd have the opportunity to talk with the
10 psychiatrist about it and refute whatever the Coast
11 Guard put in there.
12 ERIC SHINE: Granted.
13 And that's, I think, self-evident, to some
14 level or degree, your Honor. What I'm trying to raise
15 are other issues tangential to that, like, okay, well,
16 if the judge finds that -- say he says I'm depressed or
17 I'm angry or I'm upset because the U.S. Coast Guard is
18 retaliating against me, in the middle of me blowing the
19 whistle and these lawsuits or whatever, does that make
20 me mentally incompetent or medically incompetent?
21 I want to define here, so that whatever comes
22 back from the doctor in advance, they can't use, like
23 they've attempted to use, all these -- oh, he said
24 something about Timothy McVeigh in this letter, which
25 is taken well out of context. They haven't introduced
152
1 the letter. I have a huge problem not knowing in
2 advance what the rules are, which, to some level and
3 degree, the Federal Register Act applies; so that it's
4 out there so that I know --
5 HON. PARLEN L. McKENNA: All right. Let me
6 try and explain as best I can where that -- if you look
7 at 46 CFR 5.13, incompetency is the inability on the
8 part of a person to perform required duties, whether
9 due to professional deficiencies, physical disability,
10 mental incapacity or any combination thereof.
11 ERIC SHINE: So what have I been shown --
12 HON. PARLEN L. McKENNA: Excuse me. Just
13 excuse me. I'm answering your question.
14 So if there would be a question being posed to
15 the doctor, and that -- by me, and that question would
16 be, "Please evaluate the respondent. Here is the
17 background material concerning the respondent. The
18 government-provided materials are highly disputed by
19 the respondent, and then there is the respondent's
20 materials, which are included for your review. The
21 guidelines would be that you would be required to
22 evaluate the respondent by spending at least six hours
23 of sessions with the respondent. However, additional
24 sessions may be held if you need them in order to make
25 a well-reasoned conclusion on the task that you've been
153
1 assigned to."
2 ERIC SHINE: If I need them or the doctor
3 needs them? I'm not clear.
4 HON. PARLEN L. McKENNA: The doctor needs
5 them.
6 ERIC SHINE: Sorry. Well, you said "you,"
7 and -- I got you.
8 HON. PARLEN L. McKENNA: All right.
9 ERIC SHINE: It's your definition.
10 HON. PARLEN L. McKENNA: Now, this would have
11 to be concluded within 30 days from the date that we
12 pick that doctor.
13 ERIC SHINE: And why is that? I'm asking.
14 I'm -- out of ignorance.
15 HON. PARLEN L. McKENNA: 30 days should be
16 sufficient. If the doctor's schedule is not sufficient
17 to permit that, then there'll be additional --
18 ERIC SHINE: That's why I asked. We even had
19 difficulties trying to get --
20 HON. PARLEN L. McKENNA: I operate -- although
21 you might not agree, I operate by a rule of reason.
22 ERIC SHINE: I'm asking --
23 HON. PARLEN L. McKENNA: I'm trying to be
24 reasonable.
25 Yes, your Honor.
154
1 HON. PARLEN L. McKENNA: "Yes," you heard; or
2 "yes," you agree that I'm reasonable?
3 ERIC SHINE: Yes, your Honor, I heard the
4 words, my point being I just wanted -- you said it
5 follows logic or reason or you're a rational
6 individual.
7 HON. PARLEN L. McKENNA: I never said I was
8 rational.
9 ERIC SHINE: Okay. I'm paraphrasing. I grant
10 you that, that you're not.
11 HON. PARLEN L. McKENNA: I never said I was
12 irrational, either.
13 ERIC SHINE: My point being I was just asking
14 how you derive the 30 days. Is this from law, rule or
15 regulation, or is this something that has been
16 derived --
17 HON. PARLEN L. McKENNA: It's under the
18 Administrative Procedure Act, where I have the
19 authority to reasonably control my courtroom.
20 ERIC SHINE: Okay. So this is setting a rule
21 right now of the 30 days?
22 HON. PARLEN L. McKENNA: It is my initial
23 impression that that could be concluded within 30 days
24 after the -- after the first appointment. Let's --
25 ERIC SHINE: Granted.
155
1 That's all -- I'm trying to get more clarity,
2 because what is included in those 30 days, is it your
3 time frame, did you do due diligence, our time frame,
4 did you do due diligence, me to get in there and
5 conclude and have a report.
6 HON. PARLEN L. McKENNA: You're not doing the
7 due diligence. I'm doing the due diligence, and
8 Mr. Forgie, and with your assistance, will be providing
9 me with a list of questions to ensure that the doctor
10 is not conflicted.
11 ERIC SHINE: Okay. Well, that's one issue.
12 The other is, that as far as Mr. Forgie's
13 stipulation, he had no authority to make that. I'm
14 making it clear to the court these proceedings --
15 HON. PARLEN L. McKENNA: Stipulation as to
16 what?
17 MR. FORGIE: Let me just give my -- clarify
18 the record from my perspective.
19 And I think I touched on yesterday the
20 conversation that we had concerning the psychological
21 exam involving the Navy doctor.
22 My recollection of the conversation was, as I
23 touched on yesterday, and that is that I said, that
24 under no circumstances, did I -- I didn't believe that
25 under any circumstances Eric would go to a Navy doctor.
156
1 And I wanted to make it more palatable and create this
2 as a possibility perhaps with other conditions.
3 So I said, "Let's --" we all thought it would
4 be a good idea to come up with a nongovernmental
5 psychiatrist.
6 HON. PARLEN L. McKENNA: And the problem there
7 was if the government used the Navy Doctor, it wouldn't
8 cost them anything; and so therefore, is the
9 concession. You agreed that you would pay for the exam
10 if it was by a private psychiatrist.
11 MR. FORGIE: That's true.
12 HON. PARLEN L. McKENNA: Is that correct?
13 MR. FORGIE: That was the proposal,
14 absolutely.
15 HON. PARLEN L. McKENNA: All right.
16 MR. FORGIE: And so -- and I said I'd
17 recommend it to Mr. Shine.
18 And so the order came out phrased as though it
19 were a stipulation to Dr. Erlich. And I didn't agree
20 with that. Perhaps I didn't take the right steps to
21 set that aside.
22 What I did, in fact, was talk to Eric about
23 it, and he had a lot of concerns about the
24 psychological exam generally. I -- he's correct. I
25 was not under any authority to stipulate to or -- and
157
1 on his behalf, to go to whoever that person might be.
2 I never received any authority to enter into that
3 stipulation on his behalf.
4 And so what I did in response to that was,
5 when I saw that, I objected to the exam for other
6 reasons that have been maintained till today. And I
7 think there's actually been a second objection for a
8 variety of reasons. The Freedom of Information Act
9 issue came up. The medical records came up. And this
10 all got kind of mixed together. And then -- and I told
11 Eric -- and I do recall you saying in a conversation,
12 that you were going to rescind those orders. And
13 whether they were rescinded or held in abeyance or
14 whatever, I was under the distinct impression that he
15 did not need to comply with those, as you say, extant
16 orders, because -- and I told him those are not
17 effective to control your actions right now, because
18 we've got a hearing set up on yesterday -- beginning
19 yesterday to talk about the good cause that would lead
20 to the order for the exam.
21 And that may have been my mistake. I concede
22 that. But as far as he is concerned, that's what I
23 told him. And from his personal perspective, I told
24 him he didn't need to comply with that, because --
25 HON. PARLEN L. McKENNA: I understand that,
158
1 but there's no harm and no foul.
2 MR. FORGIE: Okay. I just want to make it
3 clear.
4 Hang on.
5 HON. PARLEN L. McKENNA: But I want to make
6 something perfectly clear to both Mr. Forgie, Mr. Shine
7 and the Coast Guard.
8 And that is, that in looking at the law on the
9 subject, it is my opinion that just because I allowed
10 you to come down and have the government make a
11 nonmedical, if you will, presentation and then a
12 medical presentation as to a good cause for requiring
13 the exam, that I am not conceding that that is the
14 legal standard that must be employed.
15 MR. FORGIE: I don't have any problem with --
16 HON. PARLEN L. McKENNA: And indeed, that I
17 still maintain that 33 CFR 20.1313 controls here, along
18 with 46 CFR 5.67.
19 And is there any doubt in your mind,
20 Mr. Forgie, that the -- that included within the charge
21 of incompetence is the issue of Mr. Shine's mental
22 state?
23 ERIC SHINE: May I please respond?
24 MR. FORGIE: No. Let's confer.
25 ERIC SHINE: I'm not supposed to be stifled.
159
1 I'm trying to represent myself to the court.
2 HON. PARLEN L. McKENNA: Excuse me. You will
3 conduct yourself in accordance with how --
4 ERIC SHINE: I was speaking to my --
5 HON PARLEN L. McKENNA: -- I mandate.
6 ERIC SHINE: Your Honor, I was speaking to my
7 attorney. You asked me to do that, and that's what I
8 was doing.
9 HON. PARLEN L. McKENNA: You were speaking to
10 me.
11 ERIC SHINE: I was speaking like this -- your
12 Honor, like this (indicating). Would it be better that
13 we step outside so it's more clear that I'm speaking to
14 my attorney and not the court?
15 HON. PARLEN L. McKENNA: Yes, you may.
16 ERIC SHINE: Thank you.
17 (A two-minute recess was taken.)
18 HON. PARLEN L. McKENNA: Back on the record.
19 ERIC SHINE: I just -- I was speaking, and
20 counsel took over. I had -- you know, I was addressing
21 the court. Then all of a sudden, he started addressing
22 the court. You allowed him. And now my counsel is
23 speaking for me when I was address the court, and then
24 you cut me off, stifled me. Under LMRDA, that's not
25 supposed to occur in any court or tribunal.
160
1 HON. PARLEN L. McKENNA: That's a continuing
2 objection on your part, and that's fine.
3 ERIC SHINE: Now you're saying I cannot speak
4 again; and now, you direct back to counsel when I've
5 been raising issues trying to get them addressed and
6 resolved. And as we start moving on, you direct it all
7 back to counsel to stifle me so that it creates more
8 confusion so that I --
9 HON. PARLEN L. McKENNA: Maybe it creates
10 confusion in your mind, sir.
11 ERIC SHINE: No. And I object to anything the
12 court has as to the condition of my mind, because there
13 has been no proof or evidence, and I find it
14 prejudicial of the court to even make that comment,
15 that at some point before you get to the issue of
16 medical or mental incompetence, the Coast Guard is
17 supposed to show and prove -- they have the obligation
18 for an expedient trial to do a prima facie showing to
19 seize and hold my license, if it's a matter of safety;
20 then to have it passed over for litigation.
21 MR. FORGIE: And that -- the shortened version
22 of that and the answer to your question is that we do
23 not concede that his mental state is raised by the
24 charges alone, that indeed, the step is that they have
25 to prove the act of incompetence and -- first and
161
1 foremost. And then and only then, when and if they can
2 show that there's an act of incompetence --
3 HON. PARLEN L. McKENNA: It's mental
4 incompetence.
5 MR. FORGIE: That relates to his mental state.
6 ERIC SHINE: Either --
7 MR. FORGIE: They have to show that first
8 before that issue is raised sufficiently to then order
9 an exam. That's --
10 HON. PARLEN L. McKENNA: By what case law are
11 you citing for that proposition?
12 ERIC SHINE: There's tons of it. I mean, we
13 could give you -- I think it's even in some of the
14 motions. Matson is one. The commandant goes into and
15 even stepped in --
16 MR. FORGIE: The case law has been cited in
17 our various motions, I think, about three or four
18 times.
19 HON. PARLEN L. McKENNA: That's fine.
20 ERIC SHINE: There's very strong cases out
21 there to that effect. I don't --
22 HON. PARLEN L. McKENNA: All right.
23 MR. FORGIE: We don't have any other cases
24 outside that at the moment.
25 HON. PARLEN L. McKENNA: Okay. So we'll sum
162
1 this up.
2 I have put out -- I mean, it's clear in your
3 mind where I'm coming from as to my extant orders.
4 MR. FORGIE: Okay.
5 HON. PARLEN L. McKENNA: And that those
6 orders, I am agreeing that I would modify them if
7 Mr. Shine would agree to go to a provider that I chose.
8 But I am not going to rescind them for the sole purpose
9 of chasing my tail and having Mr. Shine ultimately say,
10 "Well, I'm not going to go."
11 So if I have a commitment from your client --
12 MR. FORGIE: To comply with the court order.
13 HON. PARLEN L. McKENNA: To comply with that
14 situation that I explained on the record, then I would
15 be agreeable to modifying my prior orders regarding the
16 psychological examination.
17 ERIC SHINE: Your Honor?
18 HON. PARLEN L. McKENNA: All right. So now,
19 you two may step outside. You may.
20 ERIC SHINE: Do I need to fire counsel so I
21 can address the court? I find it highly inappropriate
22 that you will not allow me to address these issues so I
23 can speak --
24 HON. PARLEN L. McKENNA: I told you,
25 ultimately, I will allow you ten minutes to state what
163
1 you want to state.
2 ERIC SHINE: Your Honor, I asked, and you
3 heard me. And I was speaking -- I got cut off. My
4 counsel injected himself on one topic specifically.
5 I'm asking to continue to address the issues that I
6 started to raise rather than cutting me off, because
7 there's other concerns that I have.
8 And I'm asking to be able to express them
9 myself clearly and succinctly as best as possible to
10 the court and not through a conduit when I'm here. I'm
11 here in court, and I am asking to be heard. Whether
12 it's, you know, my First Amendment or free speech or
13 whatever, 14th Amendment, due process, I don't know, I
14 mean, LMRDA, whatever you want to say, I'm -- and
15 you're telling me I can't be --
16 HON. PARLEN L. McKENNA: I'm telling you you
17 need to use your attorney, and then I will give you an
18 opportunity at the end of this session today to make
19 whatever comments you want to make.
20 ERIC SHINE: But it's a waste of the court's
21 time to not hear and address the issues and my
22 concerns, that first and foremost, the order should
23 never have been issued; because ultimately, the --
24 HON. PARLEN L. McKENNA: I ruled.
25 ERIC SHINE: Again, even to your ruling, your
164
1 Honor, there's outstanding motions that have --
2 HON. PARLEN L. McKENNA: They're going to be
3 addressed.
4 ERIC SHINE: Right. But an order should be --
5 HON. PARLEN L. McKENNA: When I am on leave
6 and you file numerous motions and then we have the
7 hearing start up, I have not had an opportunity to
8 review your motions fully and to rule on them in
9 writing, and I will do so shortly.
10 ERIC SHINE: Today?
11 HON. PARLEN L. McKENNA: No.
12 ERIC SHINE: Right. No; but I'm trying -- I'm
13 asking for clarity, your Honor. Why is it a problem
14 for me to ask a simple question and try to get answers,
15 as far as the issues of outstanding -- you're saying
16 these orders are outstanding, that I'm not complying.
17 We have objected to them. I'm not -- I'm here in
18 court. It's not like I'm blowing you off. It's not
19 like I'm not going to the doctor. We have legitimate
20 concerns, whether it is miscommunication between
21 counsel and the court or whatever, whatever the problem
22 was, who cares. I'm trying to straighten it out now on
23 the record, make it very clear what my position is so
24 that there is not further miscommunication.
25 HON. PARLEN L. McKENNA: All right. State
165
1 what your position is. Will you do what I ask you to
2 do within the parameters of what I stated?
3 ERIC SHINE: I'm asking the court to correct
4 the order, first and foremost, that Dr. Erlich is
5 conflicted. I should not be forced to stipulate to
6 your order saying that I will comply until a proper
7 order is issued. The issue with Dr. -- with the Navy
8 doctor -- I'm saying it's my position --
9 HON. PARLEN L. McKENNA: All right. It's your
10 position --
11 ERIC SHINE: And we have objected to it.
12 HON. PARLEN L. McKENNA: I've heard you on the
13 record --
14 ERIC SHINE: That Dr. Erlich is conflicted.
15 And you're saying that she's not.
16 HON. PARLEN L. McKENNA: You don't know if
17 she's conflicted or not.
18 ERIC SHINE: I'm telling you, from evidence
19 that came up yesterday, from the way that she was
20 found. It didn't come from you. She's not an
21 impartial doctor. She came from the Coast Guard. She
22 came from the Coast Guard, the opposition.
23 HON. PARLEN L. McKENNA: Your counsel did a
24 due diligence on her with --
25 ERIC SHINE: And I'm --
166
1 HON. PARLEN L. McKENNA: -- Lt. Hill and found
2 no problem with her.
3 ERIC SHINE: And I am saying as myself, the
4 respondent in these matters, that I have an issue with
5 it. I object to it. And I find that Dr. Erlich --
6 HON. PARLEN L. McKENNA: What is your specific
7 objection to Dr. Erlich that you feel that
8 there's conflict of interest with Dr. --
9 ERIC SHINE: Because you are supposed to
10 find -- it is supposed to be an impartial doctor. You
11 are supposed to find the individual, not the Coast
12 Guard, not the Coast Guard. That has been my objection
13 all along.
14 Even yesterday, he brought up -- he wasn't
15 even sure how this whole process occurred. It's
16 supposed to come from the court to ensure that it's
17 impartial. And it's my position, that until that order
18 is corrected, I shouldn't have to stipulate to the
19 order that I will comply, because that will be -- then
20 if I don't, then that, in and of itself, will be a
21 violation of law, rule or regulation or court order.
22 HON. PARLEN L. McKENNA: And it says any
23 examination ordered by the judge is conducted by a
24 physician designated by the ALJ.
25 ERIC SHINE: Exactly.
167
1 HON. PARLEN L. McKENNA: Both of the parties,
2 both of the parties --
3 ERIC SHINE: No, I did not --
4 HON. PARLEN L. McKENNA: -- found her to be
5 acceptable.
6 ERIC SHINE: I am telling you --
7 HON. PARLEN L. McKENNA: Now you're saying in
8 court, "I do not find her acceptable."
9 And I'm saying to you, sir, I'm giving you the
10 opportunity to transplant Dr. Erlich's name for another
11 name --
12 ERIC SHINE: That's not my job.
13 HON. PARLEN L. McKENNA: -- but I want an
14 agreement by you that you will go --
15 ERIC SHINE: You're forcing me --
16 HON. PARLEN L. McKENNA: -- and you will not
17 do that.
18 ERIC SHINE: No. That is not what I'm saying,
19 your Honor. You will not listen.
20 HON. PARLEN L. McKENNA: You're making me
21 chase my tail, and I won't do it.
22 ERIC SHINE: You will not listen to my
23 objections.
24 HON. PARLEN L. McKENNA: This discussion is
25 over.
168
1 ERIC SHINE: Your Honor --
2 HON. PARLEN L. McKENNA: It's over.
3 ERIC SHINE: -- with all due respect --
4 HON. PARLEN L. McKENNA: It is over.
5 ERIC SHINE: Your Honor, with all due respect,
6 please let me be heard. Please let me be heard.
7 HON. PARLEN L. McKENNA: I said it's over.
8 ERIC SHINE: Please.
9 HON. PARLEN L. McKENNA: No; no.
10 ERIC SHINE: Well, because you're forcing
11 me --
12 HON. PARLEN L. McKENNA: Mr. Shine --
13 ERIC SHINE: I object, your Honor. You're
14 forcing me --
15 HON. PARLEN L. McKENNA: You can object, and
16 it's on the record. It's over. That discussion is
17 over.
18 ERIC SHINE: You're asking me to correct your
19 orders.
20 HON. PARLEN L. McKENNA: All right.
21 Mr. Forgie, I can't make this situation right for your
22 client. You know, I've tried my best.
23 MR. FORGIE: Your Honor, I would ask a couple
24 things.
25 First of all, just a statement of the basis on
169
1 which the court is making the finding that he should
2 submit to the psychological exam, and then a reasonable
3 time to comply with any order that is issued.
4 HON. PARLEN L. McKENNA: I'm not -- I'm not
5 going to do that, Counsel, if I don't get an agreement
6 that he is going to attend.
7 ERIC SHINE: Ask him -- he's waiving my
8 attorney/client privileges so that they can get access
9 to everything else or use this however they want; and
10 at some point, I will not do that. If he issues a
11 proper order, it's upon me to comply. I'm not going to
12 stipulate to something in advance so that he'll correct
13 his order. I'm sorry.
14 MR. FORGIE: All I'm saying, I would ask that
15 there be a reasonable time for him to comply with any
16 order, given the misunderstanding that has arisen in
17 relations to previous orders and the reason that we're
18 here today. I do think that time would be of some
19 benefit. Just by reasonable time, I mean reasonable
20 time.
21 HON. PARLEN L. McKENNA: Mr. Forgie, at this
22 time, I would request that you finish your rebuttal.
23 MR. FORGIE: May I have just a moment before I
24 do that to prepare?
25 HON. PARLEN L. McKENNA: Yes.
170
1 (A five-minute recess was taken.)
2 HON. PARLEN L. McKENNA: Back on the record.
3 Mr. Forgie, please make your rebuttal.
4 MR. FORGIE: Let me begin again, because I
5 don't remember where I left off.
6 The documentation -- well, the information,
7 plead absence of any documentation which the Coast
8 Guard presented to this court, first of all,
9 presupposes that it's timely for that kind of an order.
10 As I indicated yesterday, I believe that --
11 and we have restated again today that we believe that
12 the order of proof as a precondition requires that an
13 act of incompetence be demonstrated while acting under
14 the authority of the license, and that that act of
15 incompetence must be demonstrated to be a threat to the
16 safety at sea and to suggest that he can't perform his
17 duties as a marine engineer.
18 And I don't think that's been done at all. In
19 fact, no attempt has been made. And the authority for
20 that has been set forth in our many motions and the
21 brief we submitted, and I would like the record to
22 reflect the brief was submitted yesterday, along with
23 supporting documents. That was served on the court and
24 on counsel for the Coast Guard.
25 HON. PARLEN L. McKENNA: And I would ask for
171
1 your indulgence on that point, that you take it back
2 and mail it to my office --
3 MR. FORGIE: I'll do that.
4 HON. PARLEN L. McKENNA: -- given the fact
5 that it's seven, eight inches thick.
6 MR. FORGIE: I will do that to complete the
7 service.
8 HON. PARLEN L. McKENNA: The service has been
9 made.
10 ERIC SHINE: Okay. That's my only question.
11 I just didn't know if that was retaliation for some
12 reason or if it was just consideration on our part to
13 send it to the --
14 LT. HILL: Just carrying this big heavy thing
15 on the plane, we have nothing --
16 ERIC SHINE: The court still considers it's
17 been served?
18 HON. PARLEN L. McKENNA: Yes. I'm an old man.
19 I'm not going to carry some --
20 ERIC SHINE: I wouldn't --
21 HON. PARLEN L. McKENNA: -- ten-pound document
22 around with me.
23 ERIC SHINE: I wouldn't expect you to, your
24 Honor. I wasn't -- I wanted to make sure it wasn't
25 going to affect service.
172
1 HON. PARLEN L. McKENNA: Proceed.
2 Excuse me.
3 LT. HILL: I'm sorry.
4 MR. FORGIE: As to any documents that relate
5 or refer to or consist of Mr. Shine's medical records
6 or psychological records, we maintain a continuing
7 objection to the privilege, which, as I said, I believe
8 the Coast Guard has admitted exists under Federal law,
9 and I think which has existed under Federal law
10 throughout the time that they undertook efforts to
11 serve subpoenas in violation of that privilege. I
12 understand what the court's feeling is on it, as
13 expressed yesterday.
14 With respect to any possible waiver, there
15 have been no documents submitted that would indicate
16 the extent of that waiver. If any such waiver exists,
17 we strongly dispute the fact that there was any waiver.
18 If there was any waiver for any purpose, it was of
19 extremely limited purpose. He had every expectation
20 that any such documents that were obtained supposedly
21 in response to a waiver are very limited.
22 In conjunction with that argument, the Coast
23 Guard has also acknowledged that there's a right of
24 privacy with respect to those records. And I think
25 that right of privacy should, as Federal courts are now
173
1 doing, and in fact, the ECMJ executive order confirms,
2 that this privilege and the right of privacy is being
3 expanded, not contracted.
4 The Coast Guard has heavily emphasized the
5 reports of Dr. Kulik, bearing in mind Dr. Kulik, not
6 only is that information privileged and he asserts his
7 right to privacy, but Dr. Kulik was hired by ASM,
8 slash, APL in response to that entity's efforts to try
9 to demonstrate that Mr. Shine was suffering from some
10 emotional instability or mental incapacity. And I
11 think that we would be entitled to cross-examine
12 Dr. Kulik on issues associated with that.
13 The contents of the various letters, we --
14 there's a motion pending before this court relating to
15 how that is protected. He is -- Mr. Shine, in relation
16 to those documents, is asserting his whistle-blower
17 rights, the various statutes that have been submitted
18 over -- or communicated by Mr. Shine over the past
19 couple days do protect that information from use
20 against him in these kinds of proceedings. That is
21 essentially a retaliatory action by the Coast Guard in
22 an attempt to stifle that kind of writing and conduct.
23 And we believe that's totally inappropriate. That
24 would have a chilling effect on anybody in the future.
25 Merely because if an individual who's as passionate as
174
1 he is about these kinds of issues simply writes letters
2 to employers or any governmental agency, if he thinks
3 that is going to be turned against him, it would be --
4 it will have an extremely chilling effect on that kind
5 of conduct. And I don't think it's permissible, and I
6 don't think it's appropriate.
7 Really, what should be examined here is
8 whether or not Eric Shine ever evidenced any incapacity
9 or incompetency while acting aboard a vessel. And I
10 think it's conceded almost by -- if not expressly done
11 by silence, that there is nothing he did aboard any
12 boat that would indicate that he was incompetent as a
13 marine engineer. And it's a sad fact about these
14 proceedings is that there's sort of an assumption that
15 he can't perform his job, and couldn't perform his job;
16 and yet, there's been no demonstration that he couldn't
17 perform his job. This is all essentially after the
18 fact. And if there is any indication of instability,
19 whatever that might be, any implication, it's not
20 instability that has anything to do with his job. It's
21 a depression, if that, associated with circumstances of
22 his life, which I addressed in detail yesterday.
23 HON. PARLEN L. McKENNA: But Counsel, I want
24 to make it perfectly clear to you that I am here to
25 protect the public interest. And if there is a -- if
175
1 there is evidence presented that casts a doubt about
2 whether Mr. Shine's mental condition is -- makes him
3 mentally incompetent, then you're saying that you can't
4 look any further, you can't look at any of his
5 medicals, you can't even go have a medical provider go
6 out and look at him; and so in other words, you're
7 totally estopped from even getting to the issue and,
8 therefore --
9 MR. FORGIE: No.
10 HON. PARLEN L. McKENNA: -- dismiss these
11 charges.
12 MR. FORGIE: No. The charging allegations do
13 not permit that kind of an analysis. They necessarily
14 involve an act of incompetence which demonstrates that
15 he cannot perform his duties as a marine engineer.
16 That's the charging allegation. And we continue to
17 assert that that condition be shown here. You know,
18 you or the Coast Guard may feel, that in a snapshot
19 view, there's something wrong. We strongly dispute
20 that, first of all.
21 But secondly, we point out again that the
22 charging statutes do not permit that kind of snapshot
23 view, that kind of snapshot revocation proceeding.
24 HON. PARLEN L. McKENNA: I will be looking
25 very closely at that.
176
1 MR. FORGIE: Okay. Now, with respect -- just
2 let me finish off the list here.
3 The letters, declarations, whatever you want
4 to call it, from his fellow crew members, it is my
5 recollection -- and we don't have those here before us,
6 but it is my recollection that those were created
7 either on the APL JACKSON or the vessel before that,
8 and they were -- they -- essentially, all they said
9 was -- they had nothing to do with his competency as a
10 marine engineer. There was nothing in there, "This guy
11 can't perform his job. This guy has done 'X,' 'Y' and
12 'Z' as a marine engineer. He screwed up and
13 jeopardized the safety of the vessel."
14 That never occurred. There's no indication
15 whatsoever in any of those declarations to that effect.
16 What they said was he is -- "He talks about
17 litigation all the time. We're afraid of being
18 involved in litigation." And in effect, they confirmed
19 that he is a whistle-blower.
20 Now, the arbitration awards --
21 LT. HILL: I just want to -- a little bit of
22 mischaracterization. Several people, just by his
23 presence on the boat, said it made it unseaworthy.
24 ERIC SHINE: You had your ten minutes.
25 LT. HILL: I'm objecting, just as you did,
177
1 Mr. Shine.
2 ERIC SHINE: I don't think you've got the
3 right to object. He -- your Honor granted me the right
4 to object.
5 MR. FORGIE: The --
6 ERIC SHINE: It sounded good.
7 LT. HILL: Go ahead.
8 MR. FORGIE: Those are almost -- the cases
9 that we submitted are essentially on all fours. Read
10 those cases. Those cases were arbitration rulings,
11 awards, and they said, not only they're not going to
12 yank his licenses for that kind of stuff, but you can't
13 even fire the guy off the boat.
14 And he is saying that he never did anything.
15 He believes consistently that what he was talking about
16 has always been whistle-blowing and revealing things
17 that are wrong with the union, the grievance process
18 and his employers, in an effort to protect not only the
19 vessel, but national security. It's extremely
20 principled, and those guys that are on the boat just
21 didn't want to hear it.
22 And so then, it's my suggestion that if we
23 want to really find out what -- if those carry any
24 weight with the court at all, in terms of demonstrating
25 his, quote, unquote "mental incapacity," that we ought
178
1 to be given a chance to cross-examine those people and
2 find out what really they were talking about and what
3 really they meant and what really they perceived he was
4 doing. That is what we're entitled to, in terms of a
5 full adjudication in a hearing.
6 Mr. Shine's position throughout has been, and
7 it is -- I think it is borne out by the documents which
8 we submitted in conjunction with our brief yesterday
9 and which I'll take home and then resend to you. I
10 know it's a lot to ask the court to review that before
11 issuing any ruling. But his position all along, this
12 is a labor dispute, and that alone is the reason why
13 we're here, because he was trying to assert these
14 principled positions, and the Coast Guard has
15 retaliated against him; and indeed, what this court
16 should do is remand this matter to Federal Court for
17 further proceedings to determine the underlying labor
18 issues prior to taking any action.
19 The suggestion by the Coast Guard here is that
20 there's no basis in fact for all those; and indeed,
21 it's -- one of the fundamental foundations of their
22 argument is that, "Look. He's just litigious, and so
23 he's so wrong on all these issues. Although we're not
24 going to look at the issues, he's just so wrong about
25 them that we're -- he must be mentally unstable."
179
1 LT. HILL: That's not the Coast Guard's
2 position.
3 MR. FORGIE: And yet, they have -- in their 64
4 exhibits which were submitted much earlier virtually
5 all of those have -- bear direct relationship to his
6 labor issues.
7 Now, again, the captain of the APL JACKSON, I
8 forgot his name, January of '02, this was mentioned
9 yesterday by the U.S. Coast Guard, there was an
10 indication that the captain declared Mr. Shine to be
11 insubordinate.
12 HON. PARLEN L. McKENNA: Mr. Forgie, you know
13 that this is an opportunity for the government to show
14 whether the issue of Mr. Shine's mental state is an
15 issue, and it's kind of like a show cause hearing as to
16 whether I should have -- should have ordered and should
17 continue to order a medical exam to find out whether
18 there's any fire underneath that smoke, if any smoke is
19 shown. Do you understand? It's not whether there's
20 the truth of the matter stated therein. It's whether
21 there is sufficient evidence presented, that I was
22 correct in ordering.
23 MR. FORGIE: What we are saying is that the
24 hearing on that issue -- I understand what the
25 standard -- what you perceive the standard to be.
180
1 What we're saying, we would like a broader
2 hearing with a greater chance of addressing these
3 issues, simply because we perceive them to be kind of a
4 smear campaign, and there is this highly unusual
5 situation, wherein there does not appear to be any act
6 of incompetency at all.
7 And we would like the opportunity -- what
8 we're we talking --
9 HON. PARLEN L. McKENNA: It can all be
10 resolved by him going to an independent medical
11 psychiatric exam and demonstrating that there's no
12 problem. And he's unwilling to do that.
13 MR. FORGIE: No, not necessarily.
14 ERIC SHINE: Again, I tried to raise those
15 issues, your Honor, and address my concerns so that we
16 could fully address and adjudicate all those issues.
17 But you want to just let the order stand,
18 rather than address some of the concerns that I have,
19 like is that going to be a full waiver of my privilege.
20 I've seen the precedence out there, where the
21 commandant had said, no, if he agreed he knew this
22 would be used, he waived his privilege. It's an old
23 case. It's not even covered under Redman v. Jaffe or
24 whatever and the 50 states legislating support of the
25 therapist/patient privilege or the Supreme Court ruling
181
1 on it or the executive order by Clinton.
2 HON. PARLEN L. McKENNA: There is a -- there
3 is a standing objection by you and your counsel that
4 you do not want to submit to a medical exam.
5 ERIC SHINE: Not -- first and foremost, not an
6 improper one that's either the Navy doctor -- because
7 I've sued the U.S. Government.
8 MR. FORGIE: Let him finish.
9 HON. PARLEN L. McKENNA: All right. And so
10 since that order is extant, I am saying, that given the
11 state of this case, where you have an existing order
12 mandating that you have one, then -- and I'm picking
13 the one, my question was, it's not waiver because
14 you're under an order to do so.
15 ERIC SHINE: Well, but --
16 HON. PARLEN L. McKENNA: So either --
17 ERIC SHINE: I'm still trying to address these
18 issues.
19 MR. FORGIE: It's not a waiver, because you're
20 continuing the objection. All you're saying is you
21 would comply with the order.
22 ERIC SHINE: But I don't have --
23 MR. FORGIE: You're maintaining your
24 objection.
25 ERIC SHINE: But he issues the order, and then
182
1 it's upon me to comply.
2 HON. PARLEN L. McKENNA: No. I'm doing it
3 from the bench. But I'm not going to issue one if
4 you're not going to comply.
5 ERIC SHINE: But you're assuming I'm not going
6 to comply.
7 HON. PARLEN L. McKENNA: You haven't
8 complied -- you haven't complied so far.
9 ERIC SHINE: Because I've objected because I
10 have not been part of the process as to due process.
11 HON. PARLEN L. McKENNA: All right. The
12 answer is simple, sir. It's either a "yes" or a "no."
13 ERIC SHINE: Issue the order, and --
14 HON. PARLEN L. McKENNA: No. I'm going to do
15 it my way.
16 ERIC SHINE: Again, your Honor, I'm asking you
17 to correct the order first and foremost.
18 HON. PARLEN L. McKENNA: I'm not going to do
19 that.
20 ERIC SHINE: So you won't correct a faulted
21 order?
22 HON. PARLEN L. McKENNA: It's not faulted.
23 ERIC SHINE: It is in my mind.
24 HON. PARLEN L. McKENNA: That's in your mind,
25 sir.
183
1 ERIC SHINE: Again --
2 HON. PARLEN L. McKENNA: End of discussion.
3 ERIC SHINE: I've raised legitimate concerns,
4 your Honor.
5 HON. PARLEN L. McKENNA: In your mind.
6 ERIC SHINE: Well, no. My counsel -- speak
7 up, Counsel. Do you feel that I should --
8 HON. PARLEN L. McKENNA: Does that -- all
9 right, yeah, answer the question.
10 ERIC SHINE: I mean, it's attorney/client
11 privilege; but again, I'm asking my counsel to voice my
12 position that there's some problems. He's already done
13 that, even as to the due process and the stipulation.
14 There's obviously an issue. All I'm asking the court
15 to do is to correct the order so that I can comply. I
16 cannot comply with what I see as a faulted order, first
17 and foremost. I should not be forced to stipulate to
18 the order to make me comply. That's saying that --
19 it's already clear, if you issue an order and I don't
20 comply, under 5.67, from your interpretation in the
21 moment, you're saying that if I don't comply, fine.
22 Issue the order, with an impartial, you know, medical
23 provider. That's why I ask for like even a hearing on
24 this issue so that it could be fully heard and I would
25 not be stifled so that you would hear my concerns, not
184
1 only as to the Navy doctor, which has been a concern,
2 because Mr. Forgie has been speaking for me in hearings
3 that I didn't even know existed. The issue of like
4 Dr. Erlich I brought up in court, and I'm showing my
5 competency right now before the court of like asking
6 questions, "Where did Dr. Erlich come from?" I don't
7 know. I didn't agree to it. I'm saying -- I'm asking,
8 and I'm objecting, and I'm protecting my rights.
9 HON. PARLEN L. McKENNA: I understand.
10 ERIC SHINE: But I'm protecting --
11 HON. PARLEN L. McKENNA: You're not protecting
12 your rights. What you're doing --
13 ERIC SHINE: To go to a Navy doctor is
14 conflicted because he's part of the U.S. government.
15 To go to a doctor that they find that --
16 HON. PARLEN L. McKENNA: That is enough. You
17 have said that on the record at least five times.
18 ERIC SHINE: Right. And I'm not saying that I
19 will not comply with the order. But until what I see
20 is a proper order that is not conflicted to where it is
21 an impartial doctor, I cannot, in good faith, comply
22 with the outstanding orders.
23 HON. PARLEN L. McKENNA: That's fine, sir.
24 ERIC SHINE: I mean, how is that not clear?
25 All I'm asking the court to do is listen to the
185
1 objections that have been presented, not only by
2 myself, but counsel, and obtain --
3 HON. PARLEN L. McKENNA: Mr. Forgie, would you
4 please counsel Mr. Shine either to accept my generous
5 offer or reject it?
6 ERIC SHINE: But you're forcing me to
7 stipulate to it, which I --
8 HON. PARLEN L. McKENNA: No. You're not
9 stipulating to anything. All you're doing is saying
10 that you will go, you will obey a lawful court order to
11 see --
12 ERIC SHINE: I have no choice.
13 HON. PARLEN L. McKENNA: -- an impartial --
14 ERIC SHINE: I have no choice.
15 MR. FORGIE: So say it.
16 ERIC SHINE: If you issue an order under these
17 proceedings, I have to comply --
18 HON. PARLEN L. McKENNA: Well --
19 ERIC SHINE: -- or you will rule --
20 HON. PARLEN L. McKENNA: Excuse me. I have a
21 July 30th order.
22 ERIC SHINE: But we have outstanding
23 motions --
24 HON. PARLEN L. McKENNA: -- that said you were
25 going to go to Dr. Erlich on August 6th.
186
1 ERIC SHINE: I didn't -- I didn't say that. I
2 objected to that.
3 HON. PARLEN L. McKENNA: You said it, because
4 it was said by your attorney.
5 ERIC SHINE: And we filed motions objecting to
6 that on other issues that have not ever had full
7 adjudication or been ruled on.
8 HON. PARLEN L. McKENNA: Your attorney was
9 representing you; so that's why I think that maybe
10 you're not going to comply.
11 ERIC SHINE: No.
12 MR. FORGIE: No; no.
13 ERIC SHINE: There's --
14 MR. FORGIE: I've just got to say -- stop.
15 We've got to be driving her crazy.
16 ERIC SHINE: Sorry.
17 MR. FORGIE: He was not privy to that, and I
18 think that clouds the issue, really, with all due
19 respect.
20 HON. PARLEN L. McKENNA: I know, but you
21 agreed to it, Counsel.
22 MR. FORGIE: No. I agreed to recommend it to
23 him, because I was trying to --
24 HON. PARLEN L. McKENNA: No, you agreed.
25 MR. FORGIE: -- facilitate the process.
187
1 HON. PARLEN L. McKENNA: You agreed, after due
2 diligence with Lt. Hill, that she was not conflicted
3 and that she would be acceptable as an independent
4 medical exam.
5 MR. FORGIE: Under --
6 HON. PARLEN L. McKENNA: Lt. Hill, you were
7 privy to that conversation. Was that not what
8 happened?
9 LT. HILL: Yes, your Honor.
10 ERIC SHINE: But I still have to sign off on
11 it. I'm sorry.
12 MR. FORGIE: That was the way I presented it,
13 was by way of recommendation to him. And I just think
14 that it's kind of side-stepping what we're really
15 trying to accomplish here, and --
16 HON. PARLEN L. McKENNA: So what I'm saying --
17 MR. FORGIE: I think we came close to an
18 understanding moments ago; that is, if the court orders
19 him to go to an exam with a neutral person, which you
20 are going to conduct with due diligence, that he will
21 maintain his objections across the board, and he will
22 comply with the court order. That's what I heard him
23 say.
24 HON. PARLEN L. McKENNA: Is that what you're
25 saying?
188
1 ERIC SHINE: I'm not stipulating to anything.
2 MR. FORGIE: You're not stipulating. You're
3 saying --
4 ERIC SHINE: I'm not --
5 MR. FORGIE: -- you'll comply with the court
6 order and maintaining your objections, maintaining your
7 objections for purposes that you might deem to be
8 later --
9 ERIC SHINE: Please, may I speak with counsel?
10 HON. PARLEN L. McKENNA: No. Just answer the
11 question. It's "Yes" or "No."
12 ERIC SHINE: It's attorney/client privilege,
13 and I'm trying to tell where I feel that he is injuring
14 me and my rights --
15 HON. PARLEN L. McKENNA: All right.
16 ERIC SHINE: -- because you're making me agree
17 to something.
18 HON. PARLEN L. McKENNA: I'm not making you do
19 anything. That's fine.
20 ERIC SHINE: Then all I'm asking you to do
21 correct the order, issue it and have that as the
22 outstanding order so that --
23 HON. PARLEN L. McKENNA: Sir --
24 ERIC SHINE: So that I may comply.
25 HON. PARLEN L. McKENNA: You may, and you may
189
1 not. That's why I'm not doing it.
2 ERIC SHINE: But I have --
3 HON. PARLEN L. McKENNA: I'm not going to do
4 it unless I have a clear statement from you that if I
5 issue an amended order, you will obey it.
6 ERIC SHINE: I have no --
7 HON. PARLEN L. McKENNA: It's "Yes" or "No."
8 ERIC SHINE: You're asking me to --
9 HON. PARLEN L. McKENNA: I'm asking you "Yes"
10 or "No," sir.
11 ERIC SHINE: I find it a violation of due
12 process that you're asking me stipulate to a compliance
13 with an unlawful order, which is -- it's like double
14 jeopardy. You're supposed to issue the order, if I
15 don't comply, then go ahead and fine me.
16 HON. PARLEN L. McKENNA: Really?
17 ERIC SHINE: Yes. In my mind, as far as my
18 rights and my protections --
19 HON. PARLEN L. McKENNA: All right. That's
20 fine. It's the end of the discussion.
21 ERIC SHINE: I'm asking to step outside, your
22 Honor, please.
23 HON. PARLEN L. McKENNA: It's the end of the
24 discussion.
25 ERIC SHINE: Your Honor, we're very close to
190
1 closing.
2 HON. PARLEN L. McKENNA: Does that conclude
3 your comments, Mr. Forgie?
4 MR. FORGIE: No.
5 HON. PARLEN L. McKENNA: You've exceeded your
6 ten minutes significantly.
7 Proceed.
8 MR. FORGIE: There is an assertion that there
9 was a state disability claim mentioned or filed. We
10 have no such documentation. We have no idea
11 whatsoever, and we don't know whether the court is
12 taking that into consideration.
13 LT. HILL: You do have it.
14 MR. FORGIE: I haven't seen it.
15 HON. PARLEN L. McKENNA: You don't dispute
16 that it might exist, though, do you?
17 ERIC SHINE: I dispute how it was obtained,
18 and not only that, the fact that -- no, your Honor,
19 again, as far as --
20 HON. PARLEN L. McKENNA: Again -- again, I'm
21 asking you to be quiet.
22 ERIC SHINE: You're fired. Do I need to do
23 that, literally, so I may be heard in the court and
24 present my position, your Honor, and defend myself?
25 You're telling me I cannot be heard in this court.
191
1 You're forcing me to get rid of my counsel so that I
2 may be heard and present my case before the court.
3 And I just find that -- I can't even find
4 words to -- and I'm asking right now that I need to
5 step outside to find out if I have to fire counsel and
6 represent myself. I've already filed in pro per.
7 Whether I'm co-counsel on this or not, I object, object
8 strongly not to be able to voice -- there's been
9 problems as to due process, as far as the actual
10 hearing, the doctor, whatever. I'm trying to address
11 those. And you're still forcing me to go through
12 counsel, where there's been miscommunication. And you
13 will not hear it from the horse's mouth. I'm sorry. I
14 just -- I can't -- and you're forcing me now to proceed
15 on medical --
16 HON. PARLEN L. McKENNA: Mr. Shine, you may
17 do -- you may do whatever you feel is in your best
18 interest. This hearing is going to conclude in
19 approximately ten minutes.
20 ERIC SHINE: Like I was saying --
21 HON. PARLEN L. McKENNA: So you may step
22 outside and use whatever portion of the ten minutes you
23 want. If you want to terminate your counsel, you may
24 do so. And any remaining matters would be done on
25 paper.
192
1 ERIC SHINE: So you're going to issue your
2 final order today?
3 HON. PARLEN L. McKENNA: Gee, do you want to
4 read that back?
5 ERIC SHINE: Well, no. I've asked --
6 HON. PARLEN L. McKENNA: I was issuing --
7 what's my final order say?
8 ERIC SHINE: I've tried to bring up the issues
9 of September 23rd, as far as even the doctor --
10 HON. PARLEN L. McKENNA: I'm going to give the
11 Coast Guard --
12 ERIC SHINE: A chance to file a motion?
13 HON. PARLEN L. McKENNA: We have a hearing
14 date set up for September 22nd or 23rd.
15 LT. HILL: 23rd.
16 HON. PARLEN L. McKENNA: All right. If there
17 is a failure to attend a -- my ordered psychological
18 exam, then I would give you approximately two weeks to
19 file your motion for summary decision, based upon the
20 inference that is contained therein.
21 LT. HILL: Yes, your Honor.
22 HON. PARLEN L. McKENNA: And you can move for
23 a -- to vacate my order regarding a hearing.
24 LT. HILL: Yes, your Honor.
25 ERIC SHINE: May I have a moment with counsel,
193
1 please?
2 HON. PARLEN L. McKENNA: Yes. I told you you
3 could.
4 (A two-minute recess was taken.)
5 HON. PARLEN L. McKENNA: Back on the record.
6 MR. FORGIE: Given the court's ruling, we've
7 concluded our statements and --
8 ERIC SHINE: I get my ten minutes.
9 HON. PARLEN L. McKENNA: You certainly do.
10 MR. FORGIE: I defer to Mr. Shine.
11 ERIC SHINE: He shook his head no when he said
12 that.
13 HON. PARLEN L. McKENNA: I did not.
14 ERIC SHINE: It looked like it.
15 To follow up on what Mr. Forgie said, as far
16 as the issues of even medical or mental competency or
17 incompetency are supposed to require full adjudication.
18 There's commandants' decisions out on this upon appeal.
19 Even on the case, I think there's one
20 individual --
21 HON. PARLEN L. McKENNA: Called CDOA's.
22 ERIC SHINE: Okay.
23 HON. PARLEN L. McKENNA: Commandant's decision
24 on appeals.
25 ERIC SHINE: I'm sorry. I'm over acronyms.
194
1 CDOA's.
2 Matson, I believe, is one. There was one
3 where an individual had a brain fracture, an individual
4 where there's a report that came out about his
5 schizophrenia, which was his doctor's report. But the
6 commandant even went, as far as due process, that the
7 individual was given many opportunities to refute the
8 information. He didn't show up. They ordered a doctor
9 saying he didn't show up.
10 I have not failed to comply with the order.
11 There's legitimate concerns that I have, as far as the
12 outstanding orders. I've tried to address those with
13 the court. I don't have an objection to, obviously, a
14 lawful order, which is the implication that the court
15 is trying to infer. And I want to make that very clear
16 for the record. I do not see, "a," that it is a lawful
17 order or, "b," not just because of the privacy act
18 issues or privilege issues under Jaffe v. Redman, but
19 also the issues of how the records were obtained, how
20 this information was obtained, the issue that, first
21 and foremost, they have to show and prove an act of
22 incompetence.
23 Every case that's on the record is -- I think
24 there was one where the guy was in Spain or something.
25 He was found guilty by a Spanish court. And it was
195
1 actually overturned, because the Spanish court didn't
2 have authority or jurisdiction in the United States.
3 He'd actually killed somebody. And it was overturned.
4 The commandant reaffirmed it on appeal. But there was
5 clear adjudication of the issues by some tribunal as to
6 what this guy did. He killed somebody. It was very
7 clear. There was an act of incompetence.
8 There's other cases. I believe the one that's
9 schizophrenia, like I was saying, about the doctor's
10 report, it was introduced; and even the commandant
11 makes note that the individual had a chance to refute
12 it through the hearings, which I believe we've not been
13 afforded the right to evidence, subpoenas, depositions,
14 actual introduction of the records themselves. The
15 Coast Guard has introduced excerpts from letters that
16 haven't even been introduced in their entirety.
17 Mr. Forgie has actually read one of the
18 letters, the one that they brought up about Tim
19 McVeigh. And I've raised it to the Coast Guard of why
20 they would not investigate that. And to me, it goes to
21 the issue of dereliction of duty, which I've been
22 raising for quite some time, that at that point, they
23 were duty bound to come out to me and say, "What is
24 this about? What does this mean? Are you going to do
25 something," if that's what they're trying to infer now
196
1 from that letter. That letter itself was a statutorily
2 protected right, not only under free speech and other
3 laws, but under the Merchant Marine Act of 1936, LMRDA,
4 and other laws that this court does not have the
5 jurisdiction to rule on, to impose itself upon me by
6 ruling anything other than staying the proceedings or
7 working out the difficulties with the proper order as
8 to an impartial doctor that is obtained by the court
9 and not the Coast Guard, not the opposition. They're
10 already using the employer's DME, defense medical exam,
11 that was paid for by ASM, Dr. Kulik.
12 There's numerous other records that are in
13 question. Even Dr. Todros, who was fired, because I'm
14 a recovering alcoholic, I have 19 years sober, I had
15 issue with taking any kind of drugs whatsoever for any
16 purpose. That individual was fired. There's issues
17 like that that need to be raised and adjudicated. To
18 some level and degree, before we even get there, there
19 has to be an act of incompetence. I've done nothing
20 wrong. And the proceedings that are going on here are
21 further harassment, not only by the Coast Guard, but
22 now the office of administrative law judges wants to go
23 ahead and issue an order against me, saying that if I
24 do not comply, that's a violation of law, rule or
25 regulation, when I have issues not with only the order
197
1 itself, but the authority for the order, but
2 specifically the order itself as to impartiality. I've
3 raised that issue in court. I'm protecting my rights,
4 whether Mr. Forgie erringly stipulated to it or not, I
5 do not believe that he did. I think it's been
6 misconstrued by the court or the process. Whatever,
7 it's a miscommunication, misunderstanding, and I'm
8 making it clear on the record that I'm moving to
9 correct that record.
10 I've asked the court to issue a proper order
11 as to an impartial -- or panel of impartial -- you
12 brought up, your Honor, yesterday five, you know,
13 whatever -- whatever it is, that it be chosen and found
14 from the court and not the Coast Guard, who is a party
15 to this.
16 HON. PARLEN L. McKENNA: And I indicated to
17 you that I would be willing, even though -- even
18 though, based upon the due diligence of your lawyer,
19 that Dr. Erlich was found not to be conflicted and that
20 you have presented no evidence at this hearing that she
21 is indeed conflicted.
22 ERIC SHINE: That -- who, Dr. Erlich?
23 HON. PARLEN L. McKENNA: Dr. Erlich.
24 ERIC SHINE: No. The Coast Guard presented --
25 HON. PARLEN L. McKENNA: All right. Now what
198
1 I'm saying to you is that I offered you the
2 opportunity, that if you would go to another
3 psychiatrist that I picked who wasn't conflicted, even
4 maintaining your objection to going in the first place,
5 if you would go, then I would issue another order.
6 ERIC SHINE: But again --
7 HON. PARLEN L. McKENNA: All I needed was a
8 statement that you would obey the order.
9 ERIC SHINE: Your Honor --
10 HON. PARLEN L. McKENNA: If you won't obey the
11 order, then I'm not going to issue it.
12 ERIC SHINE: It's not an issue of whether or
13 not I'll obey it. You're depriving me of other avenues
14 of redress, even a temporary restraining order against
15 you for imposing that upon me.
16 And I am forced now to bring that up, which is
17 attorney/client privilege, saying that if you impose
18 yourself against me and correct the order, you're
19 asking me to stipulate in court that I will comply with
20 what I believe is an unlawful order. That does not
21 make sense to me.
22 At some point, if you correct the order, first
23 and foremost, the issue of -- the only thing that I
24 will stipulate to is that if you find that there's --
25 if you find the doctor yourself or a panel, then it
199
1 will be a lawful order.
2 Right now, as to Dr. Erlich, I -- it is my
3 position that I did not stipulate to that. My counsel
4 did not stipulate to that.
5 HON. PARLEN L. McKENNA: That might be your
6 position, but the rule doesn't say -- the rule doesn't
7 say that I pick it.
8 ERIC SHINE: No, your Honor. If you read the
9 rule that you read yesterday, it's very clear that it's
10 chosen by your Honor and not the opposition. The
11 opposition was the one who chose Dr. Erlich, not --
12 HON. PARLEN L. McKENNA: That's fine.
13 ERIC SHINE: But he brought it up in court and
14 even mentioned it on the record. It's a matter of
15 record, your Honor.
16 HON. PARLEN L. McKENNA: The record is clear
17 as to how Dr. Erlich was chosen.
18 ERIC SHINE: Could you restate and reaffirm
19 how --
20 HON. PARLEN L. McKENNA: There is exactly no
21 evidence in this record that Dr. Erlich is conflicted.
22 ERIC SHINE: And again, your Honor, the Coast
23 Guard stated yesterday on the record as to the process
24 that was followed. They were a party to that process.
25 I did not stipulate to it. This individual did not
200
1 come from the court, was not found on an impartial
2 basis.
3 HON. PARLEN L. McKENNA: The solution is quite
4 clear. Just tell me that you would obey my order and
5 go to the psychiatrist that I would pick, and this is
6 over.
7 ERIC SHINE: But again, this goes --
8 HON. PARLEN L. McKENNA: Don't give me "but
9 again." It's "Yes" or "No."
10 ERIC SHINE: But --
11 HON. PARLEN L. McKENNA: It's "Yes" or "No,"
12 sir.
13 ERIC SHINE: It's Napoleonic law. You're
14 asking me to unprove their case; where, no, They're
15 supposed to prove the incompetence, not me disprove --
16 HON. PARLEN L. McKENNA: I know that's your
17 opinion.
18 ERIC SHINE: It's the opinion of the United
19 States Constitution. It's due process, your Honor.
20 This is not Napoleonic law, where I have to disprove
21 the charges. They have to prove the charges.
22 HON. PARLEN L. McKENNA: I find that there's
23 sufficient basis, factual basis, separate and apart
24 from the medical basis, and in addition, there is
25 separate medical basis which are sufficient cause to
201
1 make me feel that you need to have an independent
2 medical exam.
3 ERIC SHINE: Can you cite the reasons for the
4 record?
5 HON. PARLEN L. McKENNA: No. I'm not -- I
6 will do it in writing. This is a -- this is basically,
7 is there sufficient basis to have you looked at.
8 ERIC SHINE: What is the act of incompetence?
9 What am I being charged with that --
10 HON. PARLEN L. McKENNA: That's fine, sir.
11 ERIC SHINE: No. But I'm asking you, your
12 Honor, so it's clear. Because at some point, it's not
13 clear from the record or anything else what I am being
14 accused of that even brings me before this court.
15 HON. PARLEN L. McKENNA: All right. We'll
16 stand adjourned.
17 Thank you very much.
18 (Proceedings concluded at 10:55 a.m.)
19
20 * * *
21
22
23
24
25
202
THIS IS A LEAF FROM
TO GO TO THE TOP OF THE TREE
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Last Update January 8, 2005 by The Catbird